Planz Pinder Enterprises, Inc. v. Minero, et al.

Filing 5

ORDER to the PLAINTIFF and IT'S COUNSEL to SHOW CAUSE Why Sanctions Should Not Be Imposed for Violation of Fed.R.Civ.P. 11, signed by Magistrate Judge Jennifer L. Thurston on 4/20/2018. Show Cause Response due by 5/3/2018. The Scheduling conference set for 5/4/2018 is VACATED. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PLANZ PINDER ENTERPRISES, INC.,
Plaintiff,

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v.

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RAMIRO MINERO, et al.,

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Defendants.

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Case No.: 1:18-cv-00180 AWI JLT
ORDER TO THE PLAINTIFF AND IT COUNSEL
TO SHOW CAUSE WHY SANCTIONS SHOULD
NOT BE IMPOSED FOR VIOLATION OF
FED.R.CIV.P. 11

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On February 4, 2018, the plaintiff was a tenant on real property and was evicted in an unlawful

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detainer action (Doc. 1 at 2-3), which was prosecuted by the defendants after the former owner lost the

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property in foreclosure.1 The plaintiff claims it was never served with the unlawful detainer action and

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as a result of being unlawfully disposed of the land, it suffered damages. Id. at 4.

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In filing its complaint, the plaintiff asserts the Court has federal question jurisdiction over this

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action. (Doc. 1 at 2) Plaintiff alleges, “Subject matter Jurisdiction is conferred upon this Court by 28

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U.S.C. §§ 1331as the action arises under the laws of the United States.” Id., emphasis added. Under

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Article III, federal courts have federal question jurisdiction over civil actions “arising under the

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The complaint alleges the property is located at “North East Connor Highway 223 Bear Mountain Blvd. Wible Rd.”
(Doc. 1 at 3) This makes no sense. The Court takes judicial notice that: Highway 223 is Bear Mountain Blvd; Wible Road
intersects with Bear Mountain Blvd; “Conner” is an unincorporated area near Millux Road in Kern County which is some
distance from either Wible Road or Bear Mountain Blvd. The Court is unaware of any road or area called “Connor” in the
Kern County, California area. Fed. R. Evid. 201(b).

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Constitution, laws, or treaties of the United States.” 28 U.S.C. 1331. Nevertheless, the plaintiff seeks

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to impose damages on the defendants for violation of the Uniform Commercial Code. The Uniform

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Commercial Code, of course, is not law of any jurisdiction2 let alone the federal courts. Rather, it is a

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mere model code. Martin v. Culberson, 2012 WL 4511270, at *2 (E.D. Mich. Oct. 1, 2012).
Though Plaintiff quotes 12 U.S. Code §3708, by its express terms it applies only to multi-family

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dwellings and only to foreclosure actions initiated by the Secretary of Housing and Urban

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Development. 12 U.S.C. §§ 3701, 37033. Thus, Plaintiff's claim under the Uniform Commercial Code

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is not based upon federal law and its reference to the § 3701 et seq., do not implicate significant federal

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issues. Consequently, this action does not “arise under” the laws of the United States.
Plaintiff and its counsel clearly appreciated the lack of jurisdiction in this case. The complaint

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reads, “in the event that this Court finds that there is not sufficient Federal Question to sustain this

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complaint, Plaintiff respectfully requests that the court grant leave to amend this complaint to correct

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any deficiencies herein.” (Doc. 1 at15) Moreover, the Court is aware4 that this plaintiff has filed two

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lawsuits in Kern County Superior Court against these same defendants (See Case No. BCV-17-102856

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and Case No. BCV-17-101284.). Counsel, likewise, is well-aware of this fact because he represents the

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plaintiff in those actions. Thus, it appears to the Court that this action was presented to harass the

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defendants and was filed despite the clear lack of federal court jurisdiction.

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Federal Rules of Civil Procedure 11(b) provides,

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By presenting to the court a pleading, written motion, or other paper--whether
by signing, filing, submitting, or later advocating it--an attorney or unrepresented party
certifies that to the best of the person's knowledge, information, and belief, formed after
an inquiry reasonable under the circumstances:

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Most states, including California, have adopted a version of the model code.
This section reads, “Multifamily mortgages held by the Secretary encumbering real estate located in any State may be
foreclosed by the Secretary in accordance with this chapter, or pursuant to other foreclosure procedures available, at
the option of the Secretary. If the Secretary forecloses on any such mortgage pursuant to such other foreclosure procedures
available, the provisions of section 3706(b) of this title may be applied at the discretion of the Secretary.” 12 U.S.C § 3703,
emphasis added.
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The Court takes juridical notice of the docket of these actions. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989
F.2d 331, 333 (9th Cir. 1993). The record of state court proceeding is a source whose accuracy cannot reasonably be
questioned and the Court may take judicial notice of them. Mullis v. United States Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th
Cir. 1987); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir.); see also
Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); Rodic v. Thistledown Racing Club, Inc., 615 F.2d
736, 738 (6th. Cir. 1980).
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(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing
law or by a nonfrivolous argument for extending, modifying, or reversing existing law
or for establishing new law;
[¶¶]

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Rule 11 continues,
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If, after notice and a reasonable opportunity to respond, the court determines
that Rule 11(b) has been violated, the court may impose an appropriate sanction on any
attorney, law firm, or party that violated the rule or is responsible for the violation.
Absent exceptional circumstances, a law firm must be held jointly responsible for a
violation committed by its partner, associate, or employee.

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Therefore, the Court ORDERS:

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1.

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No later than May 3, 2018, the plaintiff and its counsel SHALL show cause in writing

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why sanctions up to and including dismissal of this action, should not be imposed for their failure to

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demonstrate federal court jurisdiction and for their violation of Fed.R.Civ.P. 11. Alternatively, the

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plaintiff may dismiss this action by May 3, 2018;
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The scheduling conference set on May 4, 2018 is VACATED5.

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IT IS SO ORDERED.

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Dated:

April 20, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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As a result, the plaintiff’s request to continue the scheduling conference (Doc. 4) is DENIED as MOOT.

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