Gens-v-Colonial Savings, F.A.

Filing 171

ORDER by Judge Ronald M Whyte finding as moot 130 Motion to Strike ; finding as moot 130 Motion to Dismiss; granting 132 Motion for Joinder; denying 140 Motion for Sanctions; granting 154 Motion for Summary Judgment (rmwlc2, COURT STAFF) (Filed on 2/6/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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LAURA ANN GENS and TIMOTHY GENS,
Plaintiffs,

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v.

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Case No. C-11-05526-RMW

COLONIAL SAVINGS, F.A.; ASSOCIATED
BANK, N.A.; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.

ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT; DENYING
MOTION FOR SANCTIONS;
DENYING MOTION TO DISMISS AS
MOOT
[Re Dkt. Nos. 130, 140, 154]

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Defendants.

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Plaintiffs Timothy and Laura Gens (collectively, “Gens” or “plaintiffs”) filed suit against

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defendants Colonial Savings, F.A., Associated Bank, N.A., and Mortgage Electronic Registration

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Systems, Inc., (collectively, “defendants”) on claims arising out of a foreclosure in Wisconsin.

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Plaintiffs alleged nine claims in their Third Amended Complaint. Dkt. No. 129. The court

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previously dismissed plaintiffs’ 1st, 2nd, 3rd, 7th, 8th, and 9th claims with prejudice. Dkt. Nos. 113,

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117, 122 (prior Orders). Plaintiffs’ remaining claims are for trespass, conversion, and a civil RICO 1

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violation. Following service of plaintiffs’ Third Amended Complaint, defendants MERS and

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Colonial moved to dismiss. Dkt. No. 130. 2 Defendants also filed a motion for sanctions in

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18 U.S.C. § 1961(c)
Defendant Associated Bank joined in the motion to dismiss. Dkt. No. 132.
ORDER
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connection with the Gens’ failure to appear at depositions and produce documents. Dkt. No. 140.

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After later successfully taking the Gens’ depositions, and receiving some discovery from the Gens,

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defendants filed a motion for summary judgment on all remaining claims. Dkt. No. 154. Plaintiffs

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have not filed an opposition to the summary judgment motion. See Dkt. No. 169. As explained

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below, the court grants defendants’ motion for summary judgment, denies the motion for sanctions,

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and denies as moot the motion to dismiss.

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I. MOTION FOR SUMMARY JUDGMENT
As relevant to this motion, plaintiffs assert that defendants committed the torts of trespass
and conversion when defendants unlawfully entered plaintiffs’ Wisconsin property, damaged it, and

United States District Court
For the Northern District of California

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stole personal possessions. TAC ¶¶ 16-19. Plaintiffs also allege a civil RICO claim based on notes

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allegedly left by defendants that threatened retaliation. Id. at ¶¶ 60-61.

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Defendants’ motion for summary judgment is supported with evidence, and states that

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agents of Colonial did in fact enter plaintiffs’ property in order to inspect the property, winterize it,

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and ensure that it was secure and undamaged. Colonial was authorized to enter the house pursuant

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to an express provision in plaintiffs’ mortgage. Dkt. No. 154 at 10-11. As Colonial was authorized

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to enter the home, it did not commit trespass. See Wis. Stat. § 943.14. Plaintiffs have not come

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forward with any evidence supporting their allegations that Colonial damaged the property or

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converted their personal possessions. Furthermore, plaintiffs have not come forward with the notes

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that are alleged to constitute RICO violations, despite Mr. Gens testifying at his deposition that he

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had and could produce the notes. Dkt. No. 154-4, Exhibit N, Tim Gens Dep. at 49:1-7.

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Having reviewed defendants’ motion and supporting evidence, the court concludes that

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summary judgment in favor of defendants is warranted. Fed. R. Civ. P. 56(c). As accurately detailed

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in defendants’ notice of no opposition, Dkt. No. 167, and reflected on the docket, plaintiffs have

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failed to timely respond to defendants’ motions at least five times in the last 12 months. The court

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has granted plaintiffs numerous extensions, including a two-month extension following the reported

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death of plaintiffs’ son. Dkt. No. 158. Despite these extensions of time, and multiple opportunities

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to present their case to the court, plaintiffs have still failed to come forward with evidence to support

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their claims. The failure of a party to support an assertion of fact may be considered by the opposing
ORDER
Case No. C-11-5526-RMW

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party as a failure of proof. Fed. R. Civ. P. 56(c)(1)(B). The court sees no reason for this litigation to

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continue, especially in light of defendants’ submission of evidence in support of their motion for

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summary judgment. Accordingly, the court grants the motion for summary judgment.

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II. MOTION FOR SANCTIONS

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As detailed in the court’s prior Order compelling document production and attendance at

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depositions, the Gens’ failed to appear for depositions and did not respond to discovery requests.

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See Dkt. Nos. 134, 151. As a result of plaintiffs’ noncompliance with discovery requests, defendant

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Colonial moved for sanctions. Dkt. No. 140. The court denies the motion for sanctions because the

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Gens complied with the Court’s order to appear at their depositions, Dkt. No. 151, and produced

United States District Court
For the Northern District of California

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some documents (which may be all the documents they have) in response to defendants’ discovery

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requests. Furthermore, as the court is granting summary judgment, sanctions are not needed to deter

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further delay or to compensate defendants for the costs of additional discovery based on plaintiffs’

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actions.

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III. ORDER
For the reasons explained above, the court grants defendants’ motion for summary judgment,
denies the motion for sanctions, and denies as moot the motion to dismiss.

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Dated: February 6, 2015

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_________________________________
Ronald M. Whyte
United States District Judge

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ORDER
Case No. C-11-5526-RMW

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