Early v. Harding et al
Filing
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ORDER signed by Magistrate Judge Jeremy D. Peterson on 1/27/2025 DENYING plaintiff's 13 Motion to Strike, Terese's 16 Motion to Dismiss, Douglas's 17 Motion to Dismiss and DIRECTING Renee to file, within 7 days, a document st ipulating to dismissal of this action, or otherwise respond to plaintiff's 20 Notice of Voluntary Dismissal. In a separate order, the court will reset a scheduling conference. All parties are expected to appear and to timely file their status reports. (Deputy Clerk KEZ)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DAMIAN EARLY,
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Case No. 2:23-cv-2405-DJC-JDP (PS)
Plaintiff,
v.
ORDER
RENEE HARDING, et al.,
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Defendants.
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Pending before the court are (1) plaintiff’s motion to strike defendants’ answers and enter
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default; and (2) defendant Terese Harding’s and Douglas Harding’s motions to dismiss.1 For the
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foregoing reasons, all pending motions are denied.
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A short procedural history may help understand the current posture. On October 23, 2023,
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plaintiff Damian Early filed a complaint for damages against Terese Harding, Douglas Harding,
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and Renee Harding. ECF No. 1. Plaintiff alleges that in September 2016, he and Renee, the
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daughter of Terese and Douglas, entered into an agreement to improve certain property that
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plaintiff believed Renee owned. Id. at 2-3. These improvements included “an agricultural
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enterprise, including greenhouses, agricultural supplies, watering technology, and related
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equipment.” Id. at 3. Plaintiff contributed labor and materials. He alleges that Renee’s parents
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Considering that all three defendants have the same last name, the court will refer to the
parties by their first names.
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“knew and approved of said enterprise.” Id. Things changed, however, in Spring 2017, when
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Renee and plaintiff had a dispute. Id. at 4. The dispute resulted in Renee wrongfully
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appropriating all proceeds and supplies from the enterprise. Id.
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Plaintiff did not bring his case to federal court—at first. He filed a state court action
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against Renee alleging breach of contract and conversion. Id. When Renee did not appear, the
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state court entered default against her and awarded plaintiff approximately $100,000. ECF No.
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13-1 at 5. Plaintiff recorded the judgment in the “Official Records of Sacramento County.” Id. at
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4. While at the Recorders Office, plaintiff learned, for the first time, that the property he had
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invested in was not owned by Renee but was in fact owned by her parents. Id. at 4-5. Plaintiff
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claims that, in an attempt to circumvent Renee’s creditors, Terese and Douglas engaged in some
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sort of fraudulent transfer that left Renee insolvent. Id. at 5.
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Plaintiff commenced this action alleging claims for equitable subordination, transfer in
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defraud of creditors, declaration of constructive trust, unfair business practices, theft, and judicial
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foreclosure. Id. at 5-8.
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Soon after, all three defendants filed answers in pro per. ECF Nos. 5, 6, & 7. On July 12,
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2024, the court set this matter for a scheduling conference. The day before the parties were to
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submit their status reports, plaintiff filed a motion to strike defendants’ answers on the grounds
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that defendants had failed to appear at their depositions. ECF No. 12. Plaintiff filed an untimely
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status report and defendants failed to file one. ECF No. 14. In response to the parties’ failure to
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comply with the order setting the scheduling conference, the court issued an order to show cause.
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ECF No. 15. That, apparently, triggered Terese and Douglas to file separate motions to dismiss.
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ECF Nos. 16 & 17. As discussed below, these motions ask the court to consider evidence outside
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the complaint—and so are more aptly understood as motions for summary judgment.
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Two days after her parents filed their motions to dismiss, Renee filed a notice of
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bankruptcy. ECF No. 19. Plaintiff then sought to voluntarily dismiss her under Federal Rule of
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Civil Procedure 41(a)(1)(A)(i)—which, as the court will explain below, is impermissible because
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Renee already filed an answer. ECF No. 20.
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Motion to Strike
Plaintiff argues that the court should strike defendants’ answers and enter default because
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they failed to appear at properly noticed depositions. ECF No. 13-2. Plaintiff seeks to strike
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under Federal Rule of Civil Procedure 37(d). Plaintiff, however, seems to have overlooked a key
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aspect of Rule 37; it requires that the parties be engaged in discovery. The rule also contemplates
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the failure to obey a court order; here, there is no such order since the scheduling conference did
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not occur. The court is denying plaintiff’s motion, however, on the grounds that it was not
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properly noticed. The motion, brought under the discovery rules, needed to comply with my civil
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standing order, which requires that the parties to engage in a pre-discovery motion conference.
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The parties are directed to review my civil standing order, especially in regard to discovery
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motions, before filing any future motions.
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In hopes of promoting efficient resolution, the court will reset a scheduling conference,
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and, at that time, the court will issue a discovery order. If a party fails to comply with that order,
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then the parties may request a pre-discovery conference.
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Motions to Dismiss
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Defendants Terese and Douglas filed separate but seemingly identical motions to dismiss.
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ECF No. 16 & 17. However, the motions do not challenge the sufficiency of the allegations, but
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rather the merits of plaintiff’s case. A motion to dismiss made under Federal Rule of Civil
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Procedure 12(b)(6) must be treated as a motion for summary judgment under Federal Rule of
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Civil Procedure 56 if either party to the motion submits materials outside the pleadings in support
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of the motion, and if the court relies on those materials. Fed. R. Civ. P. 12(b)(6). Since these
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motions seek to have the court delve into the merits and review evidence, the court will construe
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the motions as motions for summary judgment and deny them without prejudice as premature.
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Motion to Voluntarily Dismiss
Plaintiff has filed a notice of voluntarily dismissal as to Renee. ECF No. 20. Subject to
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exceptions not applicable here, a plaintiff may voluntarily dismiss an action without a court order
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by filing:
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(i)
a notice of dismissal before the opposing party serves either
an answer or a motion for summary judgment; or
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(ii)
a stipulation of dismissal signed by all parties who have
appeared.
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Fed. R. Civ. P. 41(a)(1)(A).
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Before plaintiff filed his request for voluntary dismissal, Renee filed her answer. ECF No.
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5. Consequently, plaintiff may not unilaterally dismiss Renee under Rule 41(a)(1)(A)(i).
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However, Renee may stipulate to dismissal of this action pursuant to Rule 41(a)(1)(A)(ii). Even
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if Renee declines to stipulate, the court may dismiss this action based upon plaintiff’s request, “on
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terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2).
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Accordingly, it is hereby ORDERED that:
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1. Plaintiff’s motion to strike, ECF No. 13, is denied.
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2. Defendant Terese’s motion to dismiss, ECF No. 16, is denied.
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3. Defendant Douglas’s motion to dismiss, ECF No. 17, is denied.
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4. Defendant Renee is directed to file, within seven days of the date of this order, a
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document stipulating to dismissal of this action without prejudice pursuant to Rule
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41(a)(1)(A)(ii), or otherwise respond to plaintiff’s request for voluntary dismissal.2
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5. In a separate order, the court will reset a scheduling conference. All parties are
expected to appear and to timely file their status reports.
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IT IS SO ORDERED.
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Dated:
January 27, 2025
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JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE
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In the event Renee so stipulates, the court will construe the parties’ filings as a
stipulation of voluntary dismissal without prejudice pursuant to Rule 41(a)(1)(A)(ii).
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