Pfitzer v. Beneficial California, Inc.

Filing 52

ORDER to SHOW CAUSE signed by Chief Judge Morrison C. England, Jr on 12/23/13 Show Cause Hearing set for 1/9/2014 at 09:00 AM in Courtroom 7 (MCE) before Chief Judge Morrison C. England Jr. Show Cause Response due by 12/26/2013. The Court hereby ORD ERS that there shall be no further communication between the Courtroom Deputy and any parties or counsel for parties (and agents or representatives of either party or counsel for parties) by email, telephone call, or in any other manner, prior to th e 1/9/14 hearing. Should any further communication between the Courtroom Deputy and any parties or counsel for parties take place, it will be docketed. The sole form of communication between the Courtroom Deputy and any parties or counsel for parti es (or their agents or representatives) shall be through documents filed on the docket for this case. As required by this Order and the Courts 51 Minute Order, the parties must submit written filings in this case on the docket not later than Thursday, 12/26/13.(Meuleman, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAMELA PFITZER,

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Plaintiff,

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No. 2:09-cv-02634-MCE-AC

ORDER TO SHOW CAUSE

v.
BENEFICIAL CALIFORNIA, INC., ET.
AL.,
Defendants.

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On April 2, 2010, Plaintiff Pamela Pfitzer (“Plaintiff”) filed a Second Amended

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Complaint (“SAC”) alleging claims against Defendants Beneficial California, Inc.

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(“Beneficial California”) and Mann Bracken LLP (“Mann Bracken”). Compl., April 2,

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2010, ECF No. 26. In her SAC, Plaintiff alleged that Beneficial California violated the

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Truth in Lending Act (“TILA”) and that Mann Bracken violated the Federal and Rosenthal

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Fair Debt Collect Practices Acts. Id.

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BACKGROUND

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On April 12, 2010, Beneficial California moved to dismiss Plaintiff’s TILA claim

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(“Motion”). Mot., April 12, 2010, ECF No. 27. The Court granted Beneficial California’s

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motion and dismissed Plaintiff’s TILA claim against Beneficial California. Order, ECF

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No. 36. On July 9, 2010, Plaintiff filed an application for reconsideration of this Court’s

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order dismissing Plaintiff’s TILA claim against Beneficial California. Application, July 9,

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2010, ECF No. 37. The Court denied Plaintiff’s application. ECF No. 39. Plaintiff filed

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an interlocutory appeal of the Court’s order denying reconsideration with the Ninth

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Circuit. ECF. Nos. 40, 42-44. On October 18, 2010, the United States Court of Appeals

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for the Ninth Circuit dismissed Plaintiff’s appeal for failure to prosecute. Order, Oct. 10,

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2010, ECF No. 45. Therefore, this Court’s Order terminating Beneficial California was

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not altered. See ECF Nos. 36, 39, 45.

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On April 13, 2010, the Court received a Notice of Case in Receivership (“Notice”)

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from the Circuit Court for Montgomery County, Maryland (“Circuit Court”). ECF No. 28.

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The Notice indicated that the Circuit Court appointed a Receiver on behalf of Mann

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Bracken. Id. The Notice stated that “[p]ursuant to the Order Appointing Receiver, Cheryl

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E. Rose, Esquire has been appointed as Receiver for Mann Bracken, LLC and is,

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therefore a substitute party.” Id. Copies of the Notice were sent to Counsel for Plaintiff

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and Defendant Beneficial California. Id. Neither Mann Bracken nor its Receiver moved

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to dismiss the claims asserted against Mann Bracken.1

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On January 11, 2012, the Court continued the Jury Trial in this matter to January

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28, 2013, and scheduled a Final Pretrial Conference for November 29, 2012. Order,

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Jan. 11, 2012, ECF No. 46.

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Beneficial California’s Motion (ECF No. 27) only addressed Plaintiff’s TILA claims against
Beneficial California. The Motion did not address Plaintiff’s claim for relief against Mann Bracken for
violations of Federal and Rosenthal Fair Debt Collect Practices Acts, nor did Mann Bracken join Beneficial
California’s Motion. See ECF No. 27.

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This Order required that the parties file the Joint Pretrial Statement no later than

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November 8, 2012 and trial briefs not later than November 15, 2012. See id.

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On October 5, 2012, the Court continued trial in this matter to January 6, 2014,

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and ordered that the parties file the Joint Pretrial Statement no later than October 24,

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2013, and trial briefs not later than October 31, 2013. Order, Oct. 5, 2012, ECF No. 47.

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On September 23, 2013, the Court continued trial to February 10, 2014, at 9:00 AM.

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Order, Sept. 23, 2013, ECF No. 50. This order required that the parties file the Joint

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Final Pretrial Statement not later than November 29, 2013, and trial briefs not later than

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December 5, 2013. See id. The parties failed to file a Joint Pretrial Statement by

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November 29, 2013. In addition, neither Plaintiff nor Mann Bracken nor Mann Bracken’s

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Receiver filed Trial Briefs by December 5, 2013.

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COMMUNICATIONS BETWEEN THE PARTIES AND THE COURT

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On Friday, December 13, 2013, the Courtroom Deputy to Chief Judge England

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(“Courtroom Deputy”) contacted counsel for Plaintiff and Beneficial California via email

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and voicemail to inquire as to the status of the case.2

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Counsel for Beneficial California informed the Courtroom Deputy that Beneficial

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California was terminated as a defendant pursuant to this Court’s order on August, 13,

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2010, and the Ninth Circuit’s dismissal of Plaintiff’s appeal. See Attached Email, Dec.

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13, 2013, at 11:46 AM (referring to ECF Nos. 36, 39, 45). The Courtroom Deputy replied

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to Counsel for Beneficial California’s email stating that “there is nothing further the court

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needs from [Counsel for Beneficial California].” See Attached Email, Dec. 13, 2013, at

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1:31 PM.

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The entirety of the Courtroom Deputy’s email correspondence with counsel for Plaintiff and
Beneficial California is filed as an attachment to this Order.

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Cheryl R. McNeal, Senior Legal Assistant to Plaintiff’s Counsel, Bruce W. Ebert

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(“Plaintiff’s Counsel”), informed the Courtroom Deputy that “Per Dr. Ebert [this case]

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settled and a dismissal [was] filed.” See Attached Email, Dec. 13, 2013, at 11:51 AM.

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The Courtroom Deputy replied to McNeal’s email and correctly noted that a dismissal

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had not been filed in the matter. See Attached Email, Dec. 13, 2013, at 1:27 PM. In her

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email to McNeal, the Courtroom Deputy asked Plaintiff’s Counsel to advise the Court

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when the Notice of Settlement and the Dismissal would be filed. See id.

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After no filings were made to the docket, the Court issued a Minute Order on
Monday, December 16, 2013, requiring Plaintiff’s Counsel and the Receiver for

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Defendant Mann Bracken to personally appear for an Order to Show Cause hearing

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regarding dismissal of the case on January 9, 2014. Order, Dec. 16, 2013, ECF No. 51.

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The Minute Order also required Plaintiff and the Receiver for Mann Bracken to file a

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Response to the Order to Show Cause Hearing not later than December 26, 2013, for

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their failure to comply with the Court’s due dates set forth in its September 23, 2013,

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Order Continuing Trial (ECF No. 50). Id. Because the parties did not comply with the

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Court’s deadlines for the filing of the Joint Pretrial Statement and Trial Briefs, the Order

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also vacated the Final Pretrial Conference scheduled for Thursday, December 19, 2013,

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and the Jury Trial scheduled for February 10, 2014. Id.

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On Monday, December 16, 2013, Plaintiff’s Counsel emailed the Courtroom

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Deputy and asserted that when the Court dismissed Plaintiff’s TILA claim against

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Beneficial California, it dismissed the entire action, including Plaintiff’s federal and state

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debt collection claims against Mann Bracken. See Attached Email, Dec. 16, 2013, at

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6:45 PM. In his email, Plaintiff’s Counsel stated that “the case ENDED 2 years ago. It is

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basic law. If a plaintiff has an amended complaint dismissed and doesn’t appeal[,] the

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case is over.” Id. (emphasis in original). Plaintiff’s Counsel further contended that “[n]o

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dates were ever missed because there cannot be assigned Court dates for an action

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that doesn’t exist.” Id. The body of Plaintiff’s Counsel’s December 16, 2013, email to

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the Courtroom Deputy is reproduced here:
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With all due respect, this case ended 2 years ago! The Order
to Show Cause is based upon an error someone made on
your end at the Court. I have the greatest respect for Judge
England. He married my son and daughter-in-law and now
someone has created a sadistic situation that will require
additional work on employees who should be off for
Christmas pulled back to work. I am on military duties right
now. Must I petition the 9th Circuit to end this insanity or
schedule a personal meeting with Judge England to tell him
the truth?

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Judge England would never have done this unless he was
misled given that the case ENDED 2 years ago. It is basic
law. If a plaintiff has an amended complaint dismissed and
doesn't appeal the case is over. Frankly, I cannot appear in
front of this great man and judge I respect on the date
arbitrarily set for this debacle.

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I believe you should carefully review the record. I have
psychologically evaluated judge, many court personnel and
lawyers so I know the kind of pathology that can exist. I just
have faith that Judge England will be upset when given the
true facts so end this insanity because the mistake is at the
level of the Court. No dates were ever missed because there
cannot be assigned Court dates for an action that doesn't
exist.

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See id. (emphasis in original).

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On Tuesday, December 17, 2013, McNeal emailed the Courtroom Deputy and
attached a copy of the Ninth Circuit order dismissing Plaintiff’s appeal of this Court’s
denial of reconsideration of its order dismissing Plaintiff’s TILA claim against Beneficial
California. See Attached Email, Dec. 17, 2013, at 11:50 AM.

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Later that day, the Courtroom Deputy replied to Plaintiff’s Counsel’s December
16, 2013, email explaining this case’s history, as set forth in this order. See Attached
Email, Dec. 17, 2013 at 4:16 PM.3 In her email, the Courtroom Deputy informed
Plaintiff’s Counsel that the Court dismissed Plaintiff’s TILA claim against Beneficial
California, but that Plaintiff’s claim for relief against Mann Bracken for violations of
Federal and Rosenthal Fair Debt Collect Practices Acts remained before the Court. See
id.

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The Courtroom Deputy “replied all” to Plaintiff’s Counsel’s email and also added the Receiver for
Mann Bracken, Cheryl Rose, as a recipient. See Attached Email, 12/17/13 at 4:16 p.m.

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Plaintiff’s Counsel responded to the Courtroom Deputy’s email and asserted, for

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the first time, that Beneficial California and Mann Bracken are the same entity. See

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Attached Email, Dec. 17, 2013 at 8:15 PM (emphasis in original). Plaintiff’s Counsel’s

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contended that because the Court dismissed Plaintiff’s TILA claims against Beneficial

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California and because Beneficial California is the same entity as Mann Bracken, the

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dismissal against Beneficial was a dismissal against Mann Bracken. See id.

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The body of Plaintiff’s Counsel’s December 17, 2013, email is reproduced here:

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This is very disconcerting. Mann Bracken IS Beneficial. One
clue is that the counsel for Mann Bracken was the same
counsel for Beneficial which either was dissolved or
purchased by Mann Bracken or both. So it is basic logic. If A
= C and B = C, then B = C. Applied to this case is If Mann
Bracken = Beneficial and Beneficial = Mann Bracken then the
dismissal against Mann Bracken is a dismissal against
Beneficial. I didn't know any of this when the case started.
Lawyers for Mann Bracken should have told the Court but
you let them off the hook by telling them they didn't have to
appear. It is in the documents somewhere.4

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You have dismissed the Mann Bracken lawyers from the
Order to Show Cause. Since the Mann Bracken lawyers
represent Beneficial and your email to them tells them they
do not need to do anything only one person forced to appear
before the Judge in January is me and I'm currently on
Orders thousands of miles away on behalf of the United
States. I am on U.S. Department of Defense Orders assisting
the military in matters important to the United States. Frankly,
I believe and will note in my moving papers if required to do
them that I am convinced the requirement to present the
Court with documents on the day after Christmas is sadistic
designed to punish me when YOU made a terrible mistake.5

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The Court is unaware of any documents indicating that Mann Bracken and Beneficial California
are the same entity nor did Plaintiff’s Counsel direct the Court to any documents in this case to
substantiate this assertion. Even if Plaintiff’s Counsel’s assertion that Beneficial California and Mann
Bracken are the same entity, it is unclear how the dismissal of a TILA claim against the combined entity
would also result in the automatic dismissal of Plaintiff’s federal and state debt collection practices claims
against the combined entity or why a Receiver was appointed as a substitute party for Mann Bracken (and
not Beneficial California) even though Mann Bracken is allegedly part of, controlled by, or owned by
Beneficial California. Plaintiff and the Receiver for Mann Bracken may address these issues in their
required filings due on this Court’s docket by Thursday, Dec. 26, 2013. See ECF No. 50.
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Contrary to Plaintiff’s assertions, the Court ordered Plaintiff’s Counsel and the Receiver for Mann
Bracken to personally appear at the January 9, 2014 hearing. See ECF No. 51. Pursuant to the
Receivership Notice filed with the Court on April 13, 2010, the Court Appointed Receiver, Cheryl E. Rose,
is a substitute party for Mann Bracken. See Notice, April 13, 2010, ECF No. 28.

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So THERE IS NO CASE! IT ENDED! To think the fictional
Beneficial is still present is the same as actually thinking
Santa Clause will be coming on Christmas. This is so
frustrating and I would respectfully request that the chief of
personnel for the District Court be involved in ordering a
fitness for duty exam. Please see to it that this madness
ends.

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Dr. Ebert, not Mr. Ebert (I've testified so many times in front
of rookie lawyers who have tried that just to see it for what it
is, a blatant sign of disrespect that has no effect) Judge
England never called me "Mr. Ebert."

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See id. (emphasis in original).
As of the filing of this Order, there has been no further communication between

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Plaintiff’s Counsel and the Courtroom Deputy. The Receiver for Mann Bracken has not

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sent any correspondence to the Courtroom Deputy. The Court has not received notice

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of any actions that would indicate that the Receivership of Mann Bracken has been lifted

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or that the Receiver is no longer a substitute party for Mann Bracken.6

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The Court is aware of a decision from the United States District Court, District of Maryland filed
on July 16, 2012 that indicated that Mann Bracken “is the receivership estate of the former debt collection
law firm Mann Bracken, LLP.” Receivership Estate of Mann Bracken, LLP v. Cline, RWT 12CV292, 2012
WL 2921355 at *1 (D. Md. July 16, 2012). “On or about February 25, 2010, Mann Bracken filed a verified
petition for receivership (‘Receivership Action’) in the Circuit Court for Montgomery County. The case was
specially assigned to the Honorable Ronald B. Rubin, who has handled the matter since the filing. On
February 26, 2010, Judge Rubin appointed Cheryl Rose as the Receiver of Mann Bracken. The Receiver
has worked to wind-up the affairs of Mann Bracken while endeavoring to secure funds to satisfy the claims
of Mann Bracken's creditors.” Id. (internal citations to that court’s docket are omitted); see also Jenkins v.
Mann Bracken, LLP, 5:09-CV-80, 2011 WL 3682786 at *2 (W.D.N.C. Aug. 23, 2011) (noting that “Cheryl
Rose has been appointed in Maryland state court to liquidate Mann Bracken's assets and to participate in
lawsuits and other actions where Mann Bracken is a participant” and that “neither Mann Bracken, nor
Cheryl Rose on behalf of Mann Bracken, [had] responded to [that Court’s] Order”).

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CONCLUSION

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This matter is confirmed for hearing on Thursday, January 9, 2014 at 9:00 AM in
Courtroom 7 at the Robert T. Matsui Federal Courthouse in Sacramento, California.
As set forth in this Court’s December 16, 2013, Minute Order, ECF No. 51,
Plaintiff's Counsel and the Receiver for Defendant, Mann Bracken, are ordered to
personally appear for an Order to Show Cause hearing on Thursday, January 9, 2014, at
9:00 AM in Courtroom 7. Plaintiff's Counsel and the Receiver for Mann Bracken are
ordered to file a Response to the Order to Show Cause Hearing not later than Thursday,
December 26, 2013, to show cause for their failure to comply with the Court's deadlines
set forth in the September 23, 2013 Order Continuing Trial (ECF No. 50).
The Court hereby orders that there shall be no further communication between
the Courtroom Deputy and any parties or counsel for parties (and agents or
representatives of either party or counsel for parties) by email, telephone call, or in any
other manner, prior to the January 9, 2014 hearing. Should any further communication
between the Courtroom Deputy and any parties or counsel for parties take place, it will
be docketed. The sole form of communication between the Courtroom Deputy and any
parties or counsel for parties (or their agents or representatives) shall be through
documents filed on the docket for this case.
As required by this Order and the Court’s December 16, 2013, Minute Order, ECF
No. 51, the parties must submit written filings in this case on the docket not later than
Thursday, December 26, 2013.
IT IS SO ORDERED.

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DATED: December 23, 2013

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