Sinclair et al v. Fox Hollow, et al

Filing 920

ORDER vacating hearing date of June 17, 2013 and requesting additional briefing signed by District Judge Anthony W. Ishii on 6/14/13. (Nazaroff, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FOX HOLLOW OF TURLOCK
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OWNER’S ASSOCIATION, a California )
Nonprofit Mutual Benefit Corporation,
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Plaintiff,
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v.
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MAUCTRST, LLC et al.,
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Defendants.
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____________________________________ )

CASE NO. 1:03-CV-5439 AWI SAB
ORDER VACATING HEARING
DATE OF JUNE 17, 2013 AND
REQUESTING ADDITIONAL
BRIEFING

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Plaintiffs have made a motion for reconsideration. Doc. 897. Plaintiffs had originally

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made a motion to have claims by Mauctrst dismissed and for default judgment against Mauctrst

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based on the theory that Mauctrst lacked the capacity “to sue, or to defend itself.” Doc. 870, 2:14-

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15. This court’s order stated that the more natural conclusion was that Mauctrst lost the power

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“to sue and be sued” and so dismissed all claims by and against Mauctrst. Doc. 892, 5:10-11.

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Plaintiffs now seek to differentiate between “be sued” and “defend” arguing that under

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California law the two terms are distinct and the term “be sued” was not applicable to the

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situation. Specifically, relevant California law lists as different actions “sue, be sued, complain,

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and defend.” See Cal. Corp. Code § 17003(b). The court is prepared to reconsider the entire

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prior order. Additional briefing is required.

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In the initial motion Plaintiffs asserted Mauctrst lost the capacity “to sue, or to defend
itself.” Do Plaintiffs wish to modify their assertion to Mauctrst lost the capacity “to complain, or
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to defend itself”? Plaintiffs must provide briefing on what each of the terms “sue, be sued,

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complain, and defend” mean under California law and how they are treated differently. Then,

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Plaintiffs must provide briefing as to how those terms (the California law or analogous law from

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other states) are given effect in federal court under Fed. Rule Civ. Proc. 17(b). Plaintiffs must

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file their additional briefing by 4:00 PM on Wednesday, July 10, 2013. Mauctrst (though

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dismissed from this case) is invited but not required to file a response; any briefing from

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Mauctrst must be filed by 4:00 PM on Wednesday, July 31, 2013.

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The hearing scheduled for June 17, 2013 is VACATED. The clerk of the court is directed
to mail a paper copy of this order to Mauctrst’s former attorney, Curtis D. Rindlesbacher of

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Perkins, Mann, & Everett at 7815 N. Palm Avenue, Suite 200; Fresno, California 93711 and e-

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mail an electronic copy of this order to [e-mail].

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IT IS SO ORDERED.

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Dated:
0m8i78

June 14, 2013
SENIOR DISTRICT JUDGE

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