Johnson v. Washoe Motel LLC, et al

Filing 22

ORDER signed by Magistrate Judge Kendall J. Newman on 3/23/11 ORDERING that the Order to Show 16 is discharged; Plaintiff's request 18 effectuated a voluntary dismissal of dft Washoe Motel, LLC from this action with prejudice, w/o a court or der; the proposed findings and recommendations 13 are vacated; this case is re-designated a "pro se" case until such time as dft Pine Cone Acre Motel, LLC enters an appearance through counsel. The case number shall be "2:10-cv-2001 KJM KJN PS;" w/i 30 days, dft Pine Cone Acre Motel, LLC shall file an answer through an attorney. Any failure by dft Pine Cone Acre Motel, LLC to file a timely answer through an attorney will result in the refiling of proposed findings and recommendations, recommending the entry of a default judgment against dft Pine Cone Acre Motel, LLC; the Clerk is directed to re-label docket entry number 14 as a "Request." (Becknal, R)

-KJN (PS) Johnson v. Washoe Motel LLC, et al

Doc. 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 / This order addresses the many events and filings that have occurred since the undersigned entered proposed findings and recommendations in this case earlier this year. On February 7, 2011, the undersigned entered proposed findings and recommendations in this case, which recommended that: (1) plaintiff's motion for default be granted, and that (2) plaintiff be awarded $8,000 in statutory damages and injunctive relief. (Findings & Recommendations, Feb. 7, 2011, Dkt. No. 13.) Because of defendants' complete failure to appear in this action or respond to plaintiff's lawsuit in any respect despite having actual knowledge of the lawsuit, the undersigned had submitted plaintiff's motion for default judgment on the briefs and record in this case and vacated the February 10, 2011 hearing on plaintiff's motion. On February 10, 2011, Robert M. Twomey, the agent for service of process for 1
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SCOTT N. JOHNSON, Plaintiff, v. WASHOE MOTEL, LLC, Individually and d/b/a Washoe Motel; PINE CONE ACRE MOTEL, LLC, Individually and d/b/a Pine Cone Acre Motel, ORDER No. 2:10-cv-02001 KJM KJN

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defendants, and Daniel Freemon, listed as an "LLC member," filed a one-page, handwritten document with the court. (Letter, Feb. 10, 2011, Dkt. No. 14.) Based on that filing, it appears that Messrs. Twomey and Freemon showed up to the undersigned's courtroom with the intent of participating in the already-vacated hearing on plaintiff's motion. According to the filed note, these gentlemen were informed by court staff that the hearing was vacated. The note also references the findings and recommendations entered on February 7, 2011. Messers. Twomey and Freemon "would like to have the default vacated and reschedule [sic] a hearing so that [they] can plead [their] case." The note also states that "the Washoe Motel was taken back by the lender on 1/19/11." The undersigned did not withdraw the pending findings and recommendations in response to defendants' representative's filing. (See Order, Feb. 15, 2011, at 2-3, Dkt. No. 15.) However, on February 15, 2011, the undersigned entered an order, which, among other things, required plaintiff to file, on or before February 17, 2011, a "brief writing expressing [plaintiff's] views in regards to defendants' representative's request to vacate the proposed findings and recommendations, which, if granted, would also entail permitting defendants to obtain counsel in order to appear in this court." (Order, Feb. 15, 2011.) Plaintiff failed to respond to the court's order. As a result of plaintiff's failure to respond to the court's order, the undersigned entered an Order to Show Cause ("OSC") requiring plaintiff to "show cause in writing why he failed to respond to the court's February 11, 2011 order."1 (Order to Show Cause, Mar. 15, 2011, Dkt. No. 16.) On March 18, 2011, plaintiff satisfactorily responded to the OSC, and the undersigned discharges the OSC. Meanwhile, on March 14, 2011, Mr. Twomey filed a letter with the court, which: (1) again requests that the pending findings and recommendations entered on February 7, 2011, Although the undersigned's order was dated February 11, 2011, it appears that the order was not docketed until February 15, 2011. 2
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be vacated; (2) represents that defendants are prepared to file a response to the complaint, but cannot do so in light of the pending findings and recommendations; (3) represents that defendants' representatives understand that a limited liability company may not defend itself or be defended by non-attorneys in federal court, and that Messrs. Twomey and Freemon have "found an attorney who will represent the two defendant LLCs if the Court vacates the proposed findings and recommendations." (Letter, Mar. 14, 2011, Dkt. No. 17.) The undersigned does not construe the letters filed by defendants' representatives on February 10, 2011, and March 14, 2011, as constituting a formal answer to the complaint because: (a) neither letter actually purports to be an formal answer; (b) defendants' representatives may not appear in federal court to defend the defendants, which are limited liability companies; and (c) defendants' representatives have stated that they intend to file a response to the complaint if the court vacates the pending findings and recommendations. The court will direct the clerk of court to re-label docket entry number 14, which refers to the letter filed on February 10, 2011, as an "Answer." Additionally, on March 18, 2011, plaintiff filed a "Request for Dismissal With Prejudice As To Defendant Washoe Motel, LLC Only." (Req. for Dismissal, Dkt. No. 18.) Federal Rule of Civil Procedure 41(a)(1)(A) provides that "the plaintiff may dismiss an action without a court order by filing . . . (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared." Dismissal under this rule requires no action on the part of the court and divests the court of jurisdiction once the notice of voluntary dismissal is filed. See, e.g., United States v. Real Property Located at 475 Martin Lane, Beverly Hills, CA, 545 F.3d 1134, 1145 (9th Cir. 2008). Because defendants did not file an answer or motion for summary judgment prior to the filing of plaintiff's request for dismissal, plaintiff's request for dismissal effectuated a dismissal of defendant Washoe Motel, LLC from this action with prejudice. Although no court order was required to effectuate such a voluntary dismissal, the undersigned clarifies the nature of the dismissal of defendant Washoe Motel, LLC here. 3

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Finally, on March 18, 2011, plaintiff filed a document entitled "Plaintiff's NonOpposition to Defendant's [sic] Request to Vacate Findings and Recommendations." (Pl.'s NonOpp'n, Dkt. No. 20.) This filing gives notice that "Plaintiff does not oppose Defendant's request to set aside the Clerk's Entry of Default and to vacate the Court's Findings and Recommendations." (Id. at 1:15-17.) As a result of this filing and defendant Pine Cone Acre Motel, LLC's representative's statement to the court that it is prepared to respond to the complaint through an attorney, the undersigned vacates the pending findings and recommendations and orders defendant Pine Cone Acre Motel, LLC to file a response to the complaint through an attorney. Based on the foregoing, IT IS HEREBY ORDERED that: 1. The Order to Show Cause entered by the undersigned on March 15, 2011

(Dkt. No. 16) is discharged. 2. Plaintiff's "Request for Dismissal With Prejudice As To Defendant

Washoe Motel, LLC Only" (Dkt. No. 18) effectuated a voluntary dismissal of defendant Washoe Motel, LLC from this action with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), without the necessity of a court order. 3. The proposed findings and recommendations entered on February 7, 2011

(Dkt. No. 13) are vacated. 4. This case be re-designated a "pro se" case pursuant to Eastern District

Local Rule 302(c)(21) until such time as defendant Pine Cone Acre Motel, LLC enters an appearance through counsel. The case number to be used in the caption going forward, and until defendant Pine Cone Acre Motel, LLC enters an appearance in the action through counsel, shall be "2:10-cv-2001 KJM KJN PS." 5. Within 30 days of the date of this order, defendant Pine Cone Acre Motel,

LLC shall file an answer to plaintiff's complaint through an attorney. Any failure by defendant Pine Cone Acre Motel, LLC to file a timely answer through an attorney will result in the refiling 4

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of proposed findings and recommendations by the undersigned recommending the entry of a default judgment against defendant Pine Cone Acre Motel, LLC pursuant to Federal Rule of Civil Procedure 55(b). 6. The Clerk of Court is directed to re-label docket entry number 14 as a

"Request," instead of an "Answer." IT IS SO ORDERED. DATED: March 23, 2011

_____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

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