Monclova-Chavez v. McEachern et al

Filing 192

ORDER Requiring Plaintiff's Counsel of Record to Respond to Plaintiff's Motion for Writ of Execution re 191 , signed by Magistrate Judge Barbara A. McAuliffe on 3/7/18. Twenty-One Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:08-cv-00076-AWI-BAM (PC)

MAXIMILIAN MONCLOVA-CHAVEZ,

ORDER REQUIRING PLAINTIFF’S
COUNSEL OF RECORD TO RESPOND TO
PLAINTIFF’S MOTION FOR WRIT OF
EXECUTION

v.
McEACHERN, et al.,

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(ECF No. 191)

Defendants.

TWENTY-ONE (21) DAY DEADLINE

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Plaintiff Maximilian Monclova-Chavez (“Plaintiff”) is a federal prisoner who proceeded

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with counsel and in forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown

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Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). This action proceeded against

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Defendants Miller, White, McEachern, and Tincher.
On July 30, 2013, following a stipulation of Plaintiff and Defendants White and Miller,

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judgment was entered in the amount of $10,000, inclusive of costs and fees, in favor of Plaintiff

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and against Defendants White and Miller, jointly and severally, without an admission of liability.

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(ECF Nos. 168, 169.) On August 28, 2013, pursuant to a further stipulation of Plaintiff and

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Defendant Tincher, Defendant Tincher was dismissed, with prejudice. (ECF Nos. 171, 172.)

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Thereafter, only Defendant McEachern remained in this action.

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Defendant McEachern was served with the summons and complaint on August 13, 2009.

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(ECF No. 27.) Defendant did not file an answer. The Clerk’s Office entered default on August

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23, 2010, as per Plaintiff’s request. (ECF Nos. 55–56.) Plaintiff filed a motion for default

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judgment and, in response to the Court’s order, supplemental briefing regarding the amount of

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damages. (ECF Nos. 182, 184, 185.) Despite being served with the motion for default judgment

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and supplemental briefing, Defendant McEachern did not file a motion to set aside the default or

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respond to the motion. Accordingly, the Court issued findings and recommendations

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recommending that Plaintiff’s motion for default judgment in favor of Plaintiff and against

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Defendant McEachern be granted in part. (ECF No. 186.) The assigned district judge adopted

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the findings and recommendations on February 3, 2015, and entered judgment in favor of

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Plaintiff and against Defendant McEachern. (ECF No. 187.) Damages were awarded in the total

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amount of $12,000.00, including compensatory damages in the amount of $7,000.00 and punitive

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damages in the amount of $5,000.00. (Id.)

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Following entry of judgment, Plaintiff filed, pro se, two notices regarding the judgment on

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January 23, 2017. (ECF Nos. 189, 190.) As it was unclear whether Plaintiff remained

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represented by counsel at the time, the notices went unanswered by the Court.

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Currently before the Court is Plaintiff’s motion for writ of execution, filed pro se on
February 2, 2018. (ECF No. 191.) No responses have been filed.

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In his motion, Plaintiff requests assistance from the Court in collecting money damages

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awarded to him pursuant to the Court’s judgments against Defendants McEachern, Miller, and

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White. Plaintiff states that he has not received any of the total $22,000.00 judgment, and

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therefore requests that the Court place a levy on the Defendants’ bank accounts, or garnish their

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pay checks. Plaintiff further states that he has made several attempts to contact his attorney,

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Elizabeth Alexander, including by letter sent from the Embassy of Mexico. Plaintiff has not

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received a reply from Ms. Alexander. (Id.)

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Ordinarily, the Court would strike a motion filed pro se by a party represented by counsel,

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for failing to comply with Federal Rule of Civil Procedure 11(a). Rule 11 requires that every

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pleading, written motion, and other paper must be signed by at least one attorney of record in the
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attorney’s name, or by a party personally if the party is unrepresented. Fed. R. Civ. P. 11(a). At

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this time, Ms. Alexander remains listed on the Court’s docket, along with Catherine Campbell, as

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Plaintiff’s attorneys of record in this action.

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However, Plaintiff’s motion has raised a question regarding his continued representation.

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Therefore, the Court finds it appropriate to direct Ms. Alexander and Ms. Campbell, who will be

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informed of this order through the Court’s CM/ECF notification system by email, to file a

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response to Plaintiff’s motion. Counsel should specifically address Plaintiff’s allegations

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regarding his attempts to contact counsel to discuss this action.

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Accordingly, it is HEREBY ORDERED that Plaintiff’s counsel of record, Elizabeth

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Alexander and Catherine Campbell, shall file a response to Plaintiff’s motion for writ of

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execution, (ECF No. 191), as discussed herein, within twenty-one (21) days from the date of

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service of this order. Any request for an extension of time to comply with this order will require

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a showing of good cause.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

March 7, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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