Richard Byrd v. City of Atwater, Et Al.

Filing 164

MEMORANDUM DECISION GRANTING DEFENDANT GORDON SPENCER'S 149 MOTION FOR JUDGMENT; VACATING ORAL ARGUMENT SET FOR FEBRUARY 2, 2009, AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT FOR DEFENDANT GORDON SPENCER AND AGAINST PLAINTIFF signed by Judge Oliver W. Wanger on 1/29/2009. CASE CLOSED.(Lundstrom, T)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Defendant. 16 17 18 19 20 21 22 23 24 25 26 Defendant Gordon Spencer, in his official capacity as Merced County District Attorney and in his personal capacity moves for entry of judgment pursuant to Rule 54(b), Federal Rules of Civil Procedure. Plaintiff, represented by Kevin Little, has not filed an opposition or statement of non-opposition within the time required by Rule 78-230(c), Local Rules of Practice. By Memorandum Decision and Order filed on February 21, 2008, 1 ATWATER RESERVE OFFICER MICHAEL TEATER, et al., vs. Plaintiff, ESTATE OF RICHARD BYRD, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-F-06-900 OWW/GSA MEMORANDUM DECISION GRANTING DEFENDANT GORDON SPENCER'S MOTION FOR JUDGMENT PURSUANT TO RULE 54(b), FEDERAL RULES OF CIVIL PROCEDURE (Doc. 149), VACATING ORAL ARGUMENT SET FOR FEBRUARY 2, 2009, AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT FOR DEFENDANT GORDON SPENCER AND AGAINST PLAINTIFF IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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(Doc. 79), the Court ruled as follows: ! The Court granted Defendant Spencer's motion to dismiss Plaintiff's Section 1983 claims based on Plaintiff's alleged false arrest and prosecution, on delay in the criminal proceedings against Plaintiff, and on the sentence imposed pursuant to Heck v. Humphrey, but denied dismissal to the extent the Section 1983 claim was based on excessive bail; ! The Court held that Defendant Spencer was entitled to absolute prosecutorial immunity to the extent that Plaintiff sought monetary relief for Spencer's actions as a prosecutor, but denied dismissal to the extent Plaintiff alleged that Spencer conspired to acquire Plaintiff's real property and to the extent Plaintiff sought equitable relief; ! The Court held that Defendant Spencer, in his official capacity as Merced County District Attorney, was not a "person" within the meaning of Section 1983, but denied dismissal to the extent the Complaint alleged claims against Spencer in his individual capacity which have not been barred by absolute prosecutorial immunity; ! The Court dismissed Plaintiff's state law claims for damages and equitable relief agaisnt Defendant Spencer because of Plaintiff's failure to comply with the California Tort Claims Act for actions taken by Spencer in his capacity as Merced County District Attorney, but denied dismissal of the state law claims for damages and equitable relief arising out of Spencer's acquisition of Plaintiff's real property; ! The Court dismissed Plaintiff's state law claims based on prosecutorial immunity set forth in California Government Code § 821.6, except for Plaintiff's claim that Spencer wrongfully acquired an interest in Plaintiff's real property. After Plaintiff filed a First Amended Complaint, Defendant Spencer moved for summary judgment on all remaining claims alleged against him. Plaintiff filed a statement of non2

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opposition.

By Memorandum Decision and Order filed on September

9, 2008, (Doc. 134), Defendant Spencer's motion for summary judgment was granted. In addition, the Court has dismissed with prejudice or granted judgment on the pleadings and/or summary judgment in favor of all other Defendants in connection with Plaintiff's claims for relief based on alleged violations of his constitutional rights pursuant to 42 U.S.C. § 1983. The only

claims remaining in this action are state law claims against Defendants Carl Campodonica, William and Lillian Campodonica Trust, John Julius, Garth Pecchenino, David Gresham, Hostetler Investments, LLC, and Bellevue Road Partners, LLC. Plaintiff has

moved to dismiss the remaining state law claims pursuant to 28 U.S.C. § 1367(c)(3). This motion to dismiss was granted by

Memorandum Decision and Order filed on September 24, 2008, (Doc. 143), conditioned on Plaintiff's counsel's timely compliance with the August 7, 2008 Order compeling Plaintiff to provide discovery and pay a monetary sanction. Mr. Little has provided the

required discovery but has sought more time to pay the monetary sanction, which request is pending before the Court. Rule 54(b) provides: When an action presents more than one claim for relief ... or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the 3

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rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities. Defendant Spencer's motion for entry of an order directing

5 entry of judgment in his favor and against Plaintiff pursuant to 6 Rule 54(b) is GRANTED. 7 been resolved in Defendant Spencer's favor. 8 extremely dilatory in prosecuting this action and, as noted, has 9 sought additional time to comply with a Court-ordered monetary 10 sanction. 11 finally resolved as to the remaining Defendants in this action. 12 Plaintiff has not opposed this motion. 13 that there is no just reason to delay the entry of judgment in 14 favor of Defendant Gordon Spencer and against Plaintiff. 15 For the reasons stated: 16 1. 17 pursuant to Rule 54(b), Federal Rules of Civil Procedure, is 18 GRANTED; 19 2. 20 3. 21 FAVOR OF DEFENDANT GORDON SPENCER AND AGAINST PLAINTIFF PURSUANT 22 TO RULE 54(b), FEDERAL RULES OF CIVIL PROCEDURE. 23 IT IS SO ORDERED. 24 25 26 4 Dated: 668554 January 29, 2009 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE The Clerk of the Court is directed to ENTER JUDGMENT IN Oral argument set for February 2, 2009 is VACATED; Defendant Gordon Spencer's motion for entry of judgment The Court expressly finds It is unclear whether or when this action will be Mr. Little has been All claims against Defendant Spencer have