Xcentric Ventures, LLC, et al., v. Richeson

Filing 69

ORDER AND OPINION that Richeson's 60 Motion for Summary Judgement Based on Deemed Admissions is DENIED; that Richeson's 68 1st Amended Motion for Summary Judgment is DENIED; that Richeson's 67 1st Amended - Counter Claim Against Xcentric Ventures LLC. 18 USC 1512 - Witness Tampering is STRICKEN. Signed by Judge John W Sedwick on 12/15/10. (ESL)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B e f o re the Court is Defendant Richeson's "Motion for Summary Judgement Based o n Deemed Admissions" (Doc. 60) and his "1st Amended Motion for Summary Judgment" ( D o c . 68). The Court will deny these motions. A s the title suggests, Richeson's original motion relies entirely on Xcentric's lack of re s p o n s e to his requests for admission. Richeson's "amended" motion relies on the same re q u e sts for admission. "A party may not seek discovery from any source before the parties h a v e conferred as required by Rule 26(f) . . . ." Fed. R. Civ. P. 26(d)(1). It appears that R ic h e so n has not followed this Rule. Xcentric argues that it has not had a Rule 26(f) c o n f ere n c e with Richeson, and Richeson's only reply is that "Richeson and Speth had c o n f e rr e d as required under 26(f) on Friday the 22nd day of October 2010." (Doc. 62 at 3.) B u t the only communication in the record between Richeson and Speth on October 22 was X c e n tric Ventures, LLC, an Arizona ) lim ite d liability corporation, and Jaburg & ) W ilk , P.C., a professional corporation, ) ) Plaintiff, ) ) vs. ) ) ) S h a w n Richeson, ) ) Defendant. ) ) ) N o . CV10-1931-PHX-NVW O R D E R AND OPINION [R e : Dockets 60, 67 and 68] IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF ARIZONA

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a n e-mail exchange to which Richeson attached his requests for admission and stated, "I u n d e rs ta n d some of my discovery requests may be premature and obviously we have not c o n c lu d e d our 26F hearing." (Doc. 61 at 10.) Speth did not agree to obtain responses a n yw a y, but rather replied, "[W]e still have to wait until discovery opens." (Id.) If Richeson a n d Speth had actually held a Rule 26(f) conference on October 22, then they should have s u b m itte d their proposed discovery plan within 14 days of that conference. Fed. R. Civ. P. 2 6 (f )(2 ). No such report appears on the docket. T h e Court therefore finds that Richeson served his requests for admission before the F e d e ra l Rules of Civil Procedure permitted him to do so. Accordingly, Xcentric had no o b lig a tio n to respond, see, e.g., Wada v. U.S. Secret Service, 525 F. Supp. 2d 1, 10­11 ( D .D . C . 2007), and the Court will not deem the requests admitted. Absent such admitted re q u e sts , Richeson cannot show the lack of a genuine dispute over a material fact, and s u m m a ry judgment must be denied. T h e Court will also deny summary judgment for failure to specify the claims for w h ic h Richeson seeks judgment. Richeson's motion asks for judgment "resolving

R ic h e s o n ' s causes of action against Xcentric." (Doc. at 5.) His only cause of action is a R IC O counterclaim. (See Doc. 48.) But Richeson has since withdrawn that counterclaim. (D o c s . 63, 64.) In his reply in support of summary judgment, Richeson offered two potential a rg u m e n ts that his motion is not moot. First, he attached an e-mail he sent to Speth stating th a t he is "looking for a final summary judgment in the capacity of defendant" (Doc. 62 at 8 ), suggesting that he now asks the Court to enter summary judgment in his favor on X c e n tric 's claims. Second, in the reply itself, he asked the Court to "wrap these deemed a d m i s s io n s around any legal doctrine that applies and enter an appropriate order using the s a m e ." (Id. at 6.) T h e Court cannot grant summary judgment in the abstract. Richeson must show an a b se n c e of genuine dispute over a material fact as it relates to an element of a claim or

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d e f en s e . The Court cannot begin that analysis without knowing the claim or defense on w h ic h Richeson seeks judgment. Further, this Court has no duty to search for a legal d o ct rin e that would entitle Richeson to judgment. Accordingly, the Court will deny summary ju d g m e n t for this reason as well. A f te r summary judgment briefing closed, Richeson filed his "1st Amended - Counter C la im Against Xcentric Ventures LLC. 18 USC 1512 - Witness Tampering." (Doc. 67.) R ic h e s o n may not file amended counterclaims without leave of the Court. Fed. R. Civ. P. 1 5 (a )(2 ). The Court will therefore strike this document. F in a lly, the parties' summary judgment briefs show that Richeson has mailed p le a d in g s directly to Speth's home address without her consent. (Doc. 61 at 7­8; Doc. 62 a t 7.) The Court has previously warned Richeson about calling attorneys or parties on their h o m e telephone numbers (Doc. 37 at 10), and the Court similarly warns Richeson that m a ilin g litigation-related documents to parties' or their attorneys' home addresses is not a p p r o p r ia te absent consent or extraordinary circumstances. IT IS THEREFORE ORDERED that Richeson's "Motion for Summary Judgement B as e d on Deemed Admissions" (Doc. 60) is DENIED. IT IS FURTHER ORDERED that Richeson's "1st Amended Motion for Summary J u d g m en t" (Doc. 68) is DENIED. I T IS FURTHER ORDERED that Richeson's "1st Amended - Counter Claim Against X c e n tric Ventures LLC. 18 USC 1512 - Witness Tampering" (Doc. 67) is STRICKEN. D A T E D this 15th day of December 2010.

/S/ JOHN W. SEDWICK U N IT E D STATES DISTRICT JUDGE

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