Johnson v. Mitchell et al
Filing
228
ORDER signed by Magistrate Judge Gregory G. Hollows on 10/9/2012 ORDERING that the deadline by which defendants shall file one, consolidated motion for summary judgment is 11/21/2012. At this time, plaintiff may move for an entry of default against defendants Arosemena, Berrocal, Kahler, Lynch and Wand pursuant to Fed. R. Civ. P. 55(a). Plaintiff shall file his opposition, if any, and /or his cross-motion for summary judgement against defendants by 12/6/2012. Defendants shall file one, conso lidated reply to plaintiff's opposition or cross-motion for summary judgment by 12/13/2012. A hearing on the motions for summary judgment will be held on 12/20/2012. The undersigned FURTHER ORDERS Plaintiff shall file with the court, within te (10) days from the date upon which this order is issued, a declaration setting forth the date and manner in which service of process was completed as to defendants Reinhold and Solarte. Defendants Arosemena, Berrocal, Hammond, Kahler, Lynch, Tornga and Wand shall show cause in writing, within 20 days of entry of this order, why an entry of default or other sanctions should not be entered against them for their failure to comply with court orders. (Zignago, K.)
1
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE EASTERN DISTRICT OF CALIFORNIA
8
SHEPARD JOHNSON,
9
Plaintiff,
10
11
No. CIV S-10-1968 GEB GGH PS
vs.
CHESTER MITCHELL, et al.,
12
ORDER
Defendants.
13
/
14
Plaintiff, who is proceeding pro se in this matter, initiated this diversity action for
15
malicious prosecution and civil conspiracy to commit malicious prosecution against various
16
defendants on July 23, 2010 and proceeds with the third amended complaint filed on November
17
6, 2011. See Dkt. 119.
18
BACKGROUND
19
The facts and procedural history of this case were previously described in detail in
20
the court’s March 2, 2012 order and findings and recommendations related to other motions filed
21
in this matter. See Dkt. 169. As such, the court only sets forth some limited background facts
22
here.
23
Plaintiff is a real estate developer who claims that the defendants purchased lots
24
for a planned unit development on an island in Panama. See Third Amended Complaint, Dkt.
25
119 [“TAC”] at 2-3. Plaintiff alleges that defendants did not want to be subject to the
26
Conditions, Covenants, and Restrictions (“CC&Rs”) for the development, and so rather than
1
1
settling the matter by way of a contract dispute resolution, defendants “banded together and
2
launched a barrage of deliberate falsehoods, and engaged in wrongful conduct ... aimed at
3
upsetting and intimidating him, destroying his reputation and business, disrupting relations with
4
other lot owners, and discouraging prospective purchasers.” TAC at 3-4. Defendants also
5
allegedly initiated criminal proceedings against him in the Panama courts which were
6
purportedly later dismissed, and which are the subject of plaintiff’s malicious prosecution and
7
conspiracy claims in this litigation. TAC at 4-6. Plaintiff alleges that he was forced to file for
8
bankruptcy on July 3, 2007 “due in significant part to the false criminal complaints filed by
9
Defendants.” TAC at 5.
10
After a series of disputes as to the proper joinder of defendants, personal and
11
subject matter jurisdiction (see dkt. 149, 154, 169, 179, 193, 203, 213, 223), a scheduling
12
conference was finally held in this matter on October 3, 2012. Plaintiff appeared before the court
13
along with Debra Barron for defendants Johnson, Kiman, Efim and Elena Shargorodsky; Robert
14
Dale Ginter appeared for defendants David and Sarah Miner. Appearing via telephone was
15
James Bridgman for Chester and Catherine Mitchell. The court discussed the status of the parties
16
to date and how to move this case out of the pleading phase and towards a resolution on the
17
merits.
18
STATUS OF THE PARTIES
19
A review of the docket reveals that 17 defendants remain named parties to this
20
lawsuit: Rogelio Arosemena, Manual Berrocal, Robert Hammond, Todd Johnson, Julie Ann
21
Kahler, Viki Kiman, James Lynch, David and Sarah Miner, Chester and Catherine Mitchell,
22
Peter Reinhold, Efim and Elena Shargorodsky, Solarte Inn Corporation (“Solarte ”), Sondra
23
Tornga, and Ann Michelle Wand. Question remains as to whether two defendants — Reinhold
24
and Solarte — have been properly served. And seven (7) defendants failed to appear (without
25
notice) at the October 3, 2012 status conference: Arosemena, Berrocal, Hammond, Kahler,
26
Lynch, Tornga and Wand. The undersigned addresses both of these issues below.
2
1
SERVICE OF PROCESS
2
Plaintiff claims that service of process has been completed for all defendants that
3
have not been dismissed for diversity reasons. Dkt. 226. However, the docket does not indicate
4
that defendants Reinhold or Solarte have been served with process. Those two most recently
5
appear on the record in the court’s January 31, 2012 order requiring the plaintiff to show cause as
6
to why defendants should not be dismissed for plaintiff’s failure to prosecute and follow court
7
orders. Dkt. 156. In its March 2, 2012 order the court granted plaintiff an additional 60 days to
8
complete service on all remaining defendants. Dkt. 169 (emphasis added). Plaintiff was advised
9
that failure to do so would result in recommendations that those defendants not served be
10
11
dismissed from the case.
At hearing, plaintiff stated that he had, in fact, served Reinhold and Solarte by
12
substitution. Because there is no record of such service, plaintiff must file a declaration within
13
ten (10) days of the issuance of this order to that effect, including the date on and manner in
14
which service was accomplished. Failure to do so will result in a recommendation that
15
defendants Reinhold and Solarte be dismissed from the case.
16
APPEARANCES
17
Of the fifteen defendants whom the court recognizes as properly served and
18
named in this case, seven failed to appear at the October 3, 2012 status conference. The court
19
received no notice that these defendants would not be appearing, nor has subsequent explanation
20
for their absence been provided. This case has been on the court’s docket for over two years just
21
sorting out the pleadings and parties. All defendants were required to appear and take part in the
22
status conference in order to, finally, move this case out of the pleading stage and towards
23
disposition on the merits. In order to discuss the coordination of discovery and defense, and the
24
myriad discovery issues presented by this case, all parties needed to be present at the hearing.
25
Accordingly, defendants Arosemena, Berrocal, Hammond, Kahler, Lynch, Tornga and Wand are
26
required to show cause in writing, and within 20 days of entry of this order, why an entry of
3
1
default or other sanctions should not be entered against them for their failure to comply with
2
court orders.
3
Additionally, five defendants — whom have been properly served — have
4
failed to respond to the TAC filed on November 6, 2011. Defendants Kahler and Lynch were
5
properly served with the operative complaint and all subsequent orders of the court, but have
6
failed to respond in any way. Defendants Arosemena and Berrocal were served, for the first
7
time, with the TAC on April 26, 2012. Dkt. 196. Since that time they have failed to respond to
8
the complaint or appear, in any way, in this case. Finally, defendant Wand was properly served
9
with the TAC but subsequently filed an amended answer to the Second Amended Complaint —
10
which was no longer operative — on November 21, 2011. She has not further amended her
11
answer or appeared in the case since that time.
12
Given defendants’ failure to respond to the TAC and to defend the claims against
13
them, plaintiff may elect to move for an entry of default against these defendants pursuant to Fed.
14
R. Civ. Pro. 55(a). To do so, plaintiff must file a declaration or affidavit as outlined by the Rule
15
and may submit it to the court at the same time motions for summary judgment are due.
16
SUMMARY ADJUDICATION
17
The undersigned has allowed plaintiff to file four complaints in this case, each of
18
which added several defendants, some of whom were later dismissed voluntarily by plaintiff,
19
involuntarily for plaintiff’s failure to prosecute, or for the court’s lack of jurisdiction over their
20
person. See Dkt. 1, 5, 78-80, 118-19, 169, 176, 197, 200, 204, 210, 213, 222-23. The court has
21
expressed its intent to bring amendments to an end (dkt. 169 at 11), and after two years and four
22
complaints, and many threshold motions, the time has come. Accordingly, no further joinder of
23
parties or amendments to the pleadings will be permitted.
24
In fact, defendants believe that this case may be resolved, without commencing
25
further discovery, on motion for summary judgement given the available evidence. At hearing,
26
defendants directed the court to the current evidence available to the parties upon which
4
1
summary adjudication may be based: the documents used in the Panama court proceedings which
2
gave rise to the instant litigation, the court orders resulting from those proceedings; and
3
documents and evidence related to plaintiff’s bankruptcy proceeding in United States Bankruptcy
4
Court for the Eastern District of California. Defendants claim that on the basis of this
5
information alone they can demonstrate, as a matter of law, that the underlying prosecution
6
against plaintiff was not without probable cause — a central element of plaintiff’s claim of
7
malicious prosecution. If defendants are able to show there is no genuine dispute that probable
8
cause existed in the underlying prosecution, plaintiff’s claims in the instant litigation are
9
extinguished. 1
10
Plaintiff acknowledges possessing the documents which contain the decisions of
11
the Panama courts involved in the underlying prosecution against him. If this evidence, coupled
12
with whatever else is presently available to the parties, can support summary adjudication on at
13
least some of the claims before the court, there is no reason to embark on costly and laborious
14
discovery at this time. What is important is that the parties are moving towards a resolution on
15
the merits of the case, be that resolution decided by motion or ultimately at trial.
16
CONCLUSION
17
18
Accordingly, the undersigned will set a schedule, as follows, for completing
summary judgment briefing in this matter:
19
1. The deadline by which defendants shall file one, consolidated motion for
20
summary judgment is November 21, 2012. At this time, plaintiff may move for an entry of
21
default against defendants Arosemena, Berrocal, Kahler, Lynch and Wand pursuant to Fed. R.
22
Civ. P. 55(a).
23
24
25
26
1
Mention was also made of revisiting the court’s prior ruling on the real party plaintiff in
interest (Shepard Johnson or the bankruptcy trustee). For the Ninth Circuit authority on law of
the case, see e.g., Minidoka Irr. Dist. v. Department of the Interior, 406 F.3d 567, 573 (9th Cir.
2005). The parties shall also inform the court on their views on choice of law in any motion
made on the merits.
5
1
2
2. Plaintiff shall file his opposition, if any, and /or his cross-motion for summary
judgement against defendants by December 6, 2012.
3
4
3. Defendants shall file one, consolidated reply to plaintiff’s opposition or crossmotion for summary judgment by December 13, 2012.
5
6
4. A hearing on the motions for summary judgment will be held on December 20,
2012.
7
The undersigned FURTHER ORDERS, as discussed above, the following:
8
5. Plaintiff shall file with the court, within ten (10) days from the date upon
9
10
which this order is issued, a declaration setting forth the date and manner in which service of
process was completed as to defendants Reinhold and Solarte.
11
6. Defendants Arosemena, Berrocal, Hammond, Kahler, Lynch, Tornga and
12
Wand shall show cause in writing, within 20 days of entry of this order, why an entry of default
13
or other sanctions should not be entered against them for their failure to comply with court
14
orders.
15
IT IS SO ORDERED.
16
DATE: October 9, 2012
17
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
18
19
GGH9
20
johnson.1968.SchOrd
21
22
23
24
25
26
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?