Chabrowski, et al v. Litwin et al

Filing 71

ORDER: Defendant Mozdyniewicz's motion to dismiss #61 is GRANTED. Defendant Litwin's motion to appear telephonically at the Rule 16 scheduling conference #67 is GRANTED. Plaintiff Chabrowski's motion for leave to file objections #68 is DENIED. The Clerk is directed to file the lodged documents #69 and #70 as responses to the respective motions. Signed by Judge Douglas L Rayes on 8/16/2017. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Derek Jahn Chabrowski,
Plaintiff,

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ORDER

v.

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No. CV-16-03766-PHX-DLR

Wlodzimierz Jan Litwin; and Roman
Mozdyniewicz,

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Defendants.

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A Rule 16 scheduling conference in this matter is set for August 18, 2017 at 9:00

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a.m.

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telephonically because he is based in Utah. (Doc. 67.) The motion is granted.

(Doc. 65.)

Counsel for Defendant Litwin has filed a motion to appear

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Also pending before the Court is Defendant Mozdyniewicz’s motion to dismiss

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filed on June 21, 2017. (Doc. 61.) No response has been filed, and the time for filing one

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has passed. See LRCiv 7.2(c) (providing for a 14-day response time). Pursuant to Local

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Rule 7.2(i), the Court will deem Plaintiff Chabrowski’s failure to respond a consent to the

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granting of the motion. See also Ghazali v. Moran, 46 F.3d 53, 53 (9th Cir. 1995)

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(“Failure to follow a district court’s local rules is a proper ground for dismissal.”).

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Dismissal is appropriate on the merits as well. The amended complaint asserts

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claims for civil liability and equitable remedies for false filing with the Arizona

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Corporation Commission (ACC) under A.R.S. § 29-858. (Doc. 28 ¶¶ 79-95). The

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articles of organization for ARTBE LLC listed Chabrowski as the member and Litwin as

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the manager. (Doc. 25 at 8.) Chabrowski alleges that Litwin made unauthorized filings

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with the ACC including articles of termination falsely declaring that company assets had

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been properly collected and distributed to members. (Doc. 28 ¶ 27.) Chabrowski claims

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that company assets, including the vehicles identified in the complaint, were never

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collected and distributed as Litwin declared and he therefore has violated § 29-858 by

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filing a materially false document with the ACC. (¶¶ 80-88).

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But the complaint nowhere alleges that Mozdyniewicz made a false filing with the

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ACC. Instead, it asserts only that Mozdyniewicz has been “operating in connection with

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Litwin” to export and sell assets of the company. (¶¶ 32, 41 89.) But such conduct, even

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if true, does not constitute a violation of § 29-858. Stated otherwise, Chabrowski has

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failed to allege sufficient facts to state a plausible claim to relief against Mozdyniewicz

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under § 29-858. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The motion

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to dismiss therefore is granted.

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Litwin also has filed a motion to dismiss for failure to state a claim for relief.

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(Doc. 66.) Chabrowski has filed a motion for leave to file objections to that motion and

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the request to appear telephonically. (Doc. 68.) But leave of Court is not needed to file a

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timely response to a motion. Rather, motion practice in this District is governed by the

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Local Rules of Civil Procedure, particularly Local Rule 7.2. The request for leave of

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Court is denied as moot, but the Clerk is directed to file the lodged “objections” (Docs.

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69, 70) as responses to the respective motions. See LRCiv 7.2(c).1

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IT IS ORDERED:

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Defendant Mozdyniewicz’s motion to dismiss (Doc. 61) is GRANTED.

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2.

Defendant Litwin’s motion to appear telephonically at the Rule 16

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scheduling conference (Doc. 67) is GRANTED.
3.

Plaintiff Chabrowski’s motion for leave to file objections (Doc. 68) is

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The Court has prohibited Chabrowski from filing any motion for sanctions
absent leave of Court and has ordered him not to file documents unrelated to a
substantive motion or not authorized by a specific rule of procedure (Docs. 53, 60), but
these rulings do not prohibit Chabrowski from appropriately responding to motions as
permitted under the rules of procedure.
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DENIED. The Clerk is directed to file the lodged documents (Docs. 69, 70) as responses

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to the respective motions.

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Dated this 16th day of August, 2017.

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Douglas L. Rayes
United States District Judge

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