Allen v. Quest Online LLC et al

Filing 240

ORDER denying 197 Plaintiff's Motion to Amend the Amended Complaint; denying 200 Plaintiff's Motion for Relief from Judgment; denying 201 Plaintiff's Motion for Recusal; denying 204 Plaintiff's Motion to Compel/Strike Answ er to amended complaint and counterclaim; denying 205 Plaintiff's Motion to Compel Proper Answers; granting 207 Plaintiff's Motion for Leave to File Motion to Dismiss Counterclaims; denying 208 Plaintiff's Motion to Strike Counterclaims; denying 234 Plaintiff's Motion to Strike Debtor's Exam and Related Interrogatories and denying as moot 215 Defendants' Motion for Rule 16 Conference. Signed by Judge G Murray Snow on 5/4/12.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Allen,
Plaintiff,

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vs.

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Quest Online LLC, et. al.,
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Defendants.
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No. CV-11-138-PHX-GMS
ORDER

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Pending before the Court are: 1) Plaintiff’s Motion to Amend the Amended Complaint

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(Doc. 197); 2)Plaintiff’s Motion for Relief from Judgment (Doc. 200); 3) Plaintiff’s Motion

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for Recusal (Doc. 201); 4) Plaintiff’s Motion to Compel/Strike Answer to amended

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complaint and counterclaim (Doc. 204); 5) Plaintiff’s Motion to Compel Proper Answers

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(Doc. 205); 6) Plaintiff’s Motion for Leave to File Motion to Dismiss Counterclaims (Doc.

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207); 7) Plaintiff’s Motion to Strike Counterclaims (Doc. 208); and 8) Plaintiff’s Motion to

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Strike Debtor’s Exam and Related Interrogatories (Doc. 234). Also before the Court is the

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Response by Plaintiff to this Court’s Order that Plaintiff show cause why the Court should

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not enter an order relieving Defendants from the obligation of responding to any motion or

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filing filed by Plaintiff, unless the Court requested Defendants to file a response.

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I.

Motion to Amend the Amended Complaint (Doc. 197).

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As has previously been explained to Plaintiff, in light of the Scheduling Order that has

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been entered in this matter, amendment is allowed only if the good cause standard is

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satisfied. See Johnson v. Mammoth Recreation Centers, Inc., 975 F.2d 604 (9th Cir. 1992).

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“A court’s evaluation of good cause is not coextensive with an inquiry into the propriety of

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the amendment under . . . Rule 15.” Id. at 609. “Unlike Rule 15(a)’s liberal amendment

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policy which focuses on the bad faith of the party seeking to interpose an amendment and the

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prejudice to the opposing party, Rule 16(b)’s ‘good cause’ standard primarily considers the

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diligence of the party seeking the amendment.” Id. “[C]arelessness is not compatible with

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a finding of diligence and offers no reason for a grant of relief.” Id., citing Engleson v.

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Burlington, Northern R.R. Co., 972 F.2d 1038, 1043 (9th Cir. 1992). If the party seeking

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amendment “was not diligent, the inquiry should end.” Id.

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In his motion to amend the complaint, which the Court treats as a motion to amend

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the Scheduling Order to allow amendment, Plaintiff offers no reason why, in an appropriate

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exercise of diligence, he could not have earlier made the corrections which he now seeks

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to make in the Proposed Second Amended Complaint. Therefore, leave to file the proposed

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amendment is denied.

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II.

Motion for Relief from Judgment (Doc. 200).

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Plaintiff uses this motion to reassert his arguments on the merits of motions on which

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he has not prevailed. The motion does nothing to meet the threshold for vacating judgment

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set forth in Federal Rule of Civil Procedure 60. The motion is therefore denied.

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III.

Motion for Recusal (Doc. 201).

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This motion is also denied. The motion alleges that the judge’s rulings demonstrate

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that his impartiality might reasonably be questioned. Nevertheless, as the Supreme Court has

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indicated, “judicial rulings alone almost never constitute a valid basis for a bias or

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impartiality in and of themselves . . . they cannot possibly show reliance upon extrajudicial

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source.” Liteky v. United States, 510 U.S. 540, 545-55 (1994); see also Hasbrouck v.

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Texaco, Inc., 842 F.2d 1034, 1045-46 (9th Cir. 1987) (“The bias must stem from an

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extrajudicial source and not be based solely on information gained in the course of the

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proceedings.”).

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To the extent this Court has precluded Plaintiff from electronically filing, it has
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merely implemented in an even handed way the requirements of LRCiv. 5.5(d), and as the

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Ninth Circuit has already ruled in United States v. Studley, 783 F.2d 934 (9th Cir. 1986)

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vague notions held by a litigant that the Court does not like him or her are insufficient

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grounds to require recusal; see also Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984)

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(“A judge’s previous adverse ruling alone is not sufficient bias” to warrant recusal.).

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Plaintiff’s Motion for Recusal is, therefore, denied

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IV.

Motion to Compel/Strike to Answer to Amended Complaint and Counterclaim
(Doc. 204)

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This motion is also denied. The Court rejects and has previously rejected the assertion
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that the Twombly and Iqbal standards apply to affirmative defenses. See, e.g., J&J Sports
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Prods., Inc., v. Khachatrian, No. Cv.-10-1567-GMW-PHS, 2011 WL 720049, at *1 n.1 (D.
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Ariz. Feb. 23, 2011). Therefore, Defendants have adequately stated the affirmative defenses
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set forth in their Answer, and Plaintiff’s motion is denied.
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V.

Motion to Compel Proper Answers (Doc. 205)

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This motions is also denied. The Answer of the Defendants/Counterclaimants
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identified by Plaintiff in his motion “fairly respond to the substance of the allegation”
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contained in the Complaint. Therefore, Plaintiff’s Motion is denied.
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VI.

Motion for Leave to File Motion to Dismiss Counterclaims (Doc. 207)

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This motion is granted. Plaintiff may file his motion to dismiss, subject to the
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requirements of this Order.
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VII.

Motion to Strike Counterclaims (Doc. 208)

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This Motion is also denied. The allegations that Defendant seeks to have stricken are
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allegations that are or may be relevant to their claims or counterclaims. A dismissal of
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claims through a settlement agreement, does not result in the cancellation of facts that may
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be relevant to other claims that are not barred by the doctrine of issue or claim preclusion.
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To the extent that the Plaintiff believes that the claims based on the factual allegations are
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precluded, he may include this argument, together with the relevant legal authorities in his
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case dispositive motion.
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VIII. Motion to Strike Debtor’s Exam and Related Interrogatories (Doc. 234)
This motion is also denied. Plaintiff is subject to the jurisdiction of this Court and to

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the applicable federal rules governing the collection of judgments.

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IX. Order To Show Cause

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This Court has reviewed the history of the extensive motions made by Plaintiff in the

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course of this litigation. The Court notes again, as it has a number of times during the

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litigation, that Plaintiff urges and reurges legal arguments that the Court has previously

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reviewed, considered and denied. Although the Court has entered one sanction to curb this

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behavior by Plaintiff, he has failed to curtail such conduct, and in fact, Plaintiff asserts that

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he lacks the economic resources to pay any fine or attorneys’ fees awards. Therefore, in

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order to preserve Plaintiff’s right to raise the legal arguments that he believes should be

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addressed while at the same time limiting the cost to Defendants of repeatedly responding

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to motions on which the Court has previously ruled and which are filed for purposes of

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vexation, cost and delay, with the exception of the single summary judgment motion which

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Plaintiff is authorized to file, Defendants need not respond to any further motions by

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Plaintiff, unless the Court requests such a response.

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IT IS THEREFORE ORDERED:

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1.

Plaintiff’s Motion to Amend the Amended Complaint (Doc. 197) is denied.

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2.

Plaintiff’s Motion for Relief from Judgment (Doc. 200) is denied.

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3.

Plaintiff’s Motion for Recusal (Doc. 201) is denied.

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4.

Plaintiff’s Motion to Compel/Strike Answer to amended complaint and

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counterclaim (Doc. 204) is denied.

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5.

Plaintiff’s Motion to Compel Proper Answers (Doc. 205) is denied.

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6.

Plaintiff’s Motion for Leave to File Motion to Dismiss Counterclaims (Doc.

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207) is granted.

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7.

Plaintiff’s Motion to Strike Counterclaims (Doc. 208) is denied.

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8.

Plaintiff’s Motion to Strike Debtor’s Exam and Related Interrogatories (Doc.

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234) is denied.
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Defendants’ Motion for Rule 16 Conference (Doc. 215) is denied as moot.

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DATED this 4th day of May, 2012.

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