Finley v. Griggs et al

Filing 116

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/7/11 ORDERING that 113 Order to Show Cause is DISCHARGED; Within 30 days of the date of this order, defendants shall either: 1) file dispositional documents, or 2) file a request an extension of time for doing so, supported by good cause, together with an opposition to plaintiffs motions, supported by reliable evidence.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOWELL FINLEY,
Plaintiff,

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No. CIV S-07-2344 KJM EFB P

vs.
R.L. GRIGGS, et al.,
ORDER

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Defendants.
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On April 8, 2011, the court issued an order memorializing that this case had been settled.

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The court ordered that dispositional documents be filed not later than August 10, 2011, and

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explained that failure to comply with the order would constitute grounds for the imposition of

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sanctions. Dckt. No. 97. Defendants did not timely filed the dispositional documents.

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In addition, plaintiff has filed several motions and letters claiming that he has not been

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paid the agreed-upon settlement. See Dckt. Nos. 98 (motion for order for payment of

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settlement); 99 (withdrawal of 98); 101 (motion for order shortening time to make payment); 102

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(request for entry of default); 106 (motion for default judgment); 107 (motion for default

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judgment); 108 (request for entry of default); 111 (motion for order directing defendants to pay

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settlement funds); 112 (notice regarding payment of settlement). In all of these filings, plaintiff

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requests that he be paid the money from the settlement of this case.
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On September 15, 2011, the court ordered defendants to show cause why they should not

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be sanctioned for their violation of the August 10, 2011 order. Dckt. No. 113. In addition, the

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court ordered defendants to explain whether plaintiff has been paid the agreed-upon settlement

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amount, and to provide evidence to support the facts alleged in their filing.

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Defendants have responded to the court’s order to show cause. See Dckt. No. 114 at 3-4.

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Defendant’s counsel states that he is informed that the settlement funds in this case had been

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deposited into plaintiff’s trust account at Centinela, but were subject to a hold due to several

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court orders in which plaintiff was ordered to pay more than the settlement amount in filing fees.

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Id. at 3. Defendants state that the funds cannot be released to plaintiff because they are owed to

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the court for filing fees in thirteen cases. Id. However, defendants have not submitted a

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declaration by a person with personal knowledge of the state of plaintiff’s trust account. Id. Nor

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have they attached a statement showing plaintiff’s trust account balance, or any reliable evidence

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showing that plaintiff indeed owes filing fees for 13 lawsuits. Defendant’s counsel’s declaration

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is based on hearsay and does not constitute reliable evidence. Thus, the court defers ruling on

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plaintiff’s motions until defendants provide an opposition to plaintiff’s motion supported by

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reliable evidence, as set forth below, or file dispositional documents.

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Defendants ask for additional time “to allow the court to rule on Plaintiff’s motion/

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request in Finley v. Olive,” another civil case brought by plaintiff, in which plaintiff requested

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that CDCR be directed to release funds to pay his filing fee. Id. Defendants do not explain how

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the ruling on plaintiff’s motion in Olive is relevant to the court’s order to show cause in this case.

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In addition, this court takes judicial notice that the motion at issue in Finley v. Olive, 10-0778

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LJO BAM, has been resolved. Defendants have not requested a specific amount of time to file

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dispositional documents in this case.

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Regarding defendants’ failure to timely file the dispositional documents, defendants’

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counsel declares that he did not want to file a stipulated dismissal with prejudice until he was

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informed by plaintiff that he had received the settlement funds. Dckt. No. 114 at 2. In this
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situation, defendants’ counsel ought to have requested an extension of time to file the

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documents. However, the court discharges the order to show cause.

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Accordingly, it is hereby ORDERED that:

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1. The court’s September 15, 2011 order to show cause is discharged.

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2. Within 30 days of the date of this order, defendants shall either: 1) file dispositional

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documents, or 2) file a request an extension of time for doing so, supported by good cause,

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together with an opposition to plaintiff’s motions, supported by reliable evidence.

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Dated: November 7, 2011.

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