Sinclair et al v. Fox Hollow, et al

Filing 763

ORDER re: 621 Motion for Reconsideration, 645 Motion to Dismiss, 654 Motion for Reconsideration, 659 Motion signed by Senior Judge Oliver W. Wanger on 9/8/2011. (Kusamura, W)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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FOX HOLLOW OF TURLOCK OWNERS'
8 ASSOCIATION, a California Nonprofit
Mutual Benefit Corporation; et. al.,
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Plaintiffs,
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v.
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12 MAUCTRST LLC; et. al.,

Case No. 1:03-CV-05439-OWW-DLB
(Consolidated with 1:03-CV-5774 OWW SMS and
Stanislaus County Superior Court Case No.
322675)
ORDERS RE:
MOTION FOR RECONSIDERATION OF
ORDER TO COMPEL [DOCKET # 621];

Defendants.

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MOTION TO DISMISS [DOCKET # 645];

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MOTION TO FILE CROSS-COMPLAINT
[DOCKET # 659]; AND

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MOTION FOR RECONSIDERATION OF
DENIAL OF DISQUALIFICATION OF
PLAINTIFF’S COUNSEL [DOCKET # 654]

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19 AND CONSOLIDATED ACTIONS
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On August 8, 2011, the following motions come on for hearing before the Court, the
Honorable Oliver W. Wanger presiding:
(1)

Motion For Reconsideration of June 3, 2011 Order Granting Plaintiffs’ Motion to

Compel and Order Imposing Monetary Sanctions filed on June 13, 2011 [Docket #621] by
Richard C. Sinclair in pro per and purportedly by Richard C. Sinclair specially appearing for

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Brandon Sinclair [Motion for Reconsideration of Discovery Order];
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(2)

Motion and Request of Plaintiffs, Defendants, Counter-Defendants and Cross1

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Defendants FOX HOLLOW OF TURLOCK OWNERS ASSOCIATION and CALIFORNIA

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EQUITY MANAGEMENT GROUP, INC. and Defendant, Counter-Defendants and Cross3
Defendant ANDREW KATAKIS (collectively the “CEMG/Fox Hollow Parties”) for Entry of
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Defaults and Motion to Dismiss Against Lairtrust LLC and Capstone LLC and Motion for Sanctions

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Against Defendant Richard Sinclair filed on June 29, 2011 [Docket #645] by CEMG/Fox Hollow

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Parties (the “Motion to Dismiss”);

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(3)

Motion for Reconsideration of June 24, 2011 Order Denying Defendant’s Motion to

Dismiss Mr. Dunn and Mr. Durbin for Conflict of Interest, filed June 30, 2011 [Docket #654] by
Richard C. Sinclair in pro se (“Motion for Reconsideration of Denial of Disqualification”); and
(4)

Motion to Allow Lairtrust LLC to file Cross-Complaint filed June 30, 2011 [Docket

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#659] by Richard C. Sinclair in pro se and purportedly as attorney and member manager for Lairtrust

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LLC (“Motion for Leave to File Cross-Complaint”).

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D. Greg Durbin and John M. Dunn appeared personally at such hearing on behalf of the

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CEMG/Fox Hollow Parties and Richard C. Sinclair appearing at the hearing by telephone pro se, and

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purportedly appearing as attorney for Lairtrust LLC and Capstone LLC and purportedly specially

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appearing for Brandon Sinclair.
Richard Sinclair was placed under oath at the hearing by the Court.

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The Court having reviewed the papers filed with respect to each of the motions and having
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conducted a hearing thereon and having received the arguments and statements of counsel and good
cause appearing:

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NOW, THEREFORE, IT IS HEREBY ORDERED as follows:

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1.

The Motion for Reconsideration of the Discovery Order is denied. The Discovery

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Order is a valid order and no grounds for reconsideration are presented. Defendants Richard C.

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Sinclair and Brandon Sinclair are each hereby ordered to comply fully and completely with Judge

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Beck’s Order issued on June 3, 2011 [Docket # 613] by not later than August 30, 2011.

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2.

With respect to the documents being produced in response to document request

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numbers 52 through 57 (for the organizational, ownership and other documents relating to
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Lairtrust LLC and Capstone LLC, all of which are included in Judge Beck’s Order June 3, 2011
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[these requests are set out in Docket # 595, Page 29 of 48 and 30 of 48]), Defendants Richard C.

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Sinclair and Brandon Sinclair are each hereby further ordered to deliver a copy of all such

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documents to the Clerk of this Court not later than August 30, 2011 (with a copy of the caption

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of this case and a statement the documents are for the September 26th Hearing).
3.

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The hearing on the Motion to Dismiss is continued until 11:00 am, Monday,

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September 26, 2011 (the “September 26th Hearing”), with the parties having a right to file

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supplemental briefs and evidence relating to the Motion to Dismiss not later than September 12,

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2011.

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4.

The Motion for Leave to File a Cross-Complaint is denied without prejudice to

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filing of a proper motion. There is no such pleading under the Federal Rules of Civil Procedure

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as a Cross-Complaint. If he was not previously aware of this fact, Richard Sinclair was notified

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of this fact in this Court’s Memorandum of Decision dated April 29, 2011. (Doc. 563,

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Memorandum Decision Regarding Plaintiffs’ Motion To Sever And Stay, fn. 1.) Richard
Sinclair was again reminded of this fact at the August 8, 2011 hearing.

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5.

The Court preliminarily denied the Motion for Reconsideration of the Denial of

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Disqualification. However, the Court instructs that the CEMG/Fox Hollow Parties shall have up
to and including August 22, 2011 to file supplemental papers addressing the Motion for

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Reconsideration of Denial of Disqualification. The purpose of such supplemental papers shall

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be:

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(1)

to include information concerning, without limitation, whether any motions

to disqualify McCormick Barstow, L.P. as counsel for the CEMG/Fox Hollow Parties were

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filed in the State Court proceedings, the outcome of any such motions, and describing the

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proceedings therein; and
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(2)

otherwise addressing the Motion for Reconsideration of Denial of

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Disqualification on the merits.

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Richard Sinclair shall have up to and including August 29, 2011, to file a reply thereto.

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Lairtrust, LLC was not a moving party on this Motion for Reconsideration and shall not be

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entitled to file a reply and shall not be heard on the Motion for Reconsideration. The Court

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previously struck Brandon Sinclair as a moving party on the Motion for Reconsideration.
6.

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For purposes of the consideration by the Court of the various sanctions requests

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against Richard Sinclair pending before the Court, the CEMG/Fox Hollow Parties shall file with the

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Court not later than September 12, 2011, a detailed statement of the alleged violations of this Court’s

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orders and other conduct of Mr. Sinclair upon which such sanctions requests are based, and a

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declaration covering the fees and expenses incurred to such date upon which a claim of monetary

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sanctions is based.

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7.

Richard C. Sinclair is hereby ordered to appear personally at the September 26,

2011 Hearing and shall be subject to being placed under oath and questioned at such hearing.

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IT IS SO ORDERED.
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Dated:
emm0d6

September 8, 2011

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

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