Meer v. Dennis Dillon Auto Park & Truck Center, Inc et al

Filing 30

MEMORANDUM DECISION AND ORDER granting 20 Motion for Extension of Time to Amend; denying without prejudice 25 Motion to Amend/Correct; granting in part and denying in part 28 Motion for Protective Order; finding as moot 29 Motion for Definiti ve Ruling. This action is stayed as to defendant Jeff Lilly only, and the stay does not extend to the other co-defendants. Plaintiff may file a renewed motion to amend within 20 days from the date of this decision addressing the concerns set forth in this decision. No extensions of time will be allowed. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

WENDI L MEER,
Case No. 1:12-CV-025-BLW
Plaintiff,
vs.

MEMORANDUM DECISION
AND ORDER

DENNIS DILLON AUTO PARK & TRUCK
CENTER, INC., NORTHWEST LEASING,
TREASURE VALLEY LEASING, INC.,
DENNIS E. DILLON, JOAN B. DILLON,
BRADLEY B. DILLON, DENNIS T.
MCCURRY, DUANE A. SESSIONS, JERRON
MOORE, CHARLENE SILVA, JEFF LILLY,
Defendants.

INTRODUCTION
The Court has before it a number of motions filed by both sides. The Court will
resolve each motion below.
ANALYSIS
Plaintiff Meer filed this case against eleven defendants – including financing
agencies, Dennis Dillon Auto Park, and various individuals – alleging that the defendants
improperly repossessed her car and used intimidation and threats to collect a debt. The
Court granted Meer’s motion to proceed in forma pauperis and filed a Case Management
Order setting various deadlines. Meer is representing herself.

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Motion For Protective Order and Motion for Definitive Ruling on Stay
Defendants have filed a motion for protective order, arguing that Meer propounded
discovery on them in violation of the automatic stay entered when defendant Jeff Lilly
filed for Chapter 7 bankruptcy. In response, Meer filed a motion seeking a definitive
ruling on the scope of the stay and whether it applies to this entire case or only to her
action against Lilly.
The automatic stay generated by Lilly’s Chapter 7 filing continues in full force and
effect as it has not been lifted and the bankruptcy proceedings have not yet been resolved.
As a general rule, the automatic stay protects only the debtor, property of the debtor or
property of the estate and does not protect non-debtor co-defendants in civil litigation.
Boucher v. Shaw, 572 F.3d 1087, 1092 (9th Cir. 2009) (holding that the stay does not
protect non-debtor parties or their property). The fact that Meer’s claims against Lilly’s
co-defendants share a “similar legal and factual nexus” with her claims against Lilly “is
not sufficient ground for extending the automatic stay” to the co-defendants. U.S. v Dos
Cabezas Corp., 995 F.2d 1486, 1492 (9th Cir. 1993).
While some courts have adopted an “unusual circumstances” exception to this rule,
the Ninth Circuit has stated in Matter of Lockard, 884 F.2d 1171, 1179 (9th Cir. 1989),
that “[w]e have not explicitly recognized such an exception, and we decline to do so in
this case.” While the Circuit has more recently described the “vitality” of the exception
in this Circuit as “not clear,” it continues to decline to apply the exception. In re
Chugach Forest Products, Inc., 23 F.3d 241, 247 (9th Cir. 1994); see also Boucher, 572
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F.3d at 1092. At any rate, Chugach held that even if adopted, the exception would only
apply where the Bankruptcy Court had held a hearing and found that “unusual
circumstances” existed sufficient to extend its stay to protect non-debtors. That precondition to the exception does not exist in this case.
Thus, the stay in this case affects only the action against Lilly, and the remainder
of the case may proceed. Accordingly, the defendants’ motion for protective order must
be denied in part. No defendant except Lilly is protected by the stay from answering
discovery. However, because this was not clear until this decision, the Court will grant in
part the defendants’ motion and grant to them an extension of time to answer the
interrogatory – their answers, or any objections to the interrogatories, must be filed within
twenty days from the date of this decision.
This decision moots Meer’s motion for a definitive ruling on the scope of the stay.
The Court has now resolved that issue.
Motion to Amend Complaint
Meer seeks to amend her complaint to add a RICO claim and to add a defendant
named Keith Foster. Other than listing Keith Foster as a “respondent,” Meer’s proposed
amendment fails entirely to explain how he caused any injury or damage to Meer. With
regard to the RICO claim, it is not clear which defendants are being sued under RICO.
While Meer charges defendant Lilly with extortion, she fails to identify any of the other
eleven defendants in the RICO claim. She never explains how the RICO conspiracy
operated. In discussing the RICO conspiracy, she incorporates paragraphs from her
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original complaint by stating that “Facts S,T & Z (listed in original complaint) are all
examples of 18 U.S.C. § 1962(d) [the RICO conspiracy provisions].” See Proposed
Amended Complaint (Dkt. No. 25) at p. 5. Facts “S” and “T” are simply recitations that
Meer sent certified letters complaining about breaches of contract and unethical conduct
to Treasure Valley Leasing and Dennis Dillon Sales; the paragraphs do not contain any
explanation as to how the defendants conspired together. Fact “Z” states that Meer sent a
cease and desist letter under the Fair Debt Collection Practices Act to Dennis Dillion.
Again, it says nothing about a conspiracy.
The only clear allegation in the proposed amendment is that defendant Lilly
committed extortion. But the case as to Lilly is stayed, as discussed above, and hence this
part of the proposed amendment must be denied, without prejudice to the motion being
renewed when the stay in Lilly’s bankruptcy is lifted.
The remainder of the proposed amendment is indecipherable, for the reasons
explained above. Meer fails to explain her RICO claim in sufficient detail so that each
defendant (other than Lilly) could understand his or her role in (1) a particular predicate
act and (2) the alleged conspiracy.
Rule 15(a) directs the Court to “freely give leave [to amend] when justice so
requires.” This Circuit has described Rule 15(a) as “very liberal.” AmerisourceBergen
Corp. v. Dialysist West, Inc., 465 F.3d 946 (9th Cir. 2006). However, a district court
need not grant leave to amend where the amendment: “(1) prejudices the opposing party;
(2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile.” Id.
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It is this last category – futility – that exists here and blocks Meer’s proposed
amendment. On its face, Meer’s RICO claim could not survive a motion to dismiss under
Ashcroft v. Iqbal, 556 U.S. 662 (2009), and hence it would be futile to grant this
amendment.
Accordingly, the Court will deny Meer’s motion to amend. Nevertheless, pro se
plaintiffs must be given an opportunity to amend their complaint unless it is absolutely
clear that the deficiencies in the complaint could not be cured by amendment. Lopez v.
Smith, 203 F.3d 1122, 1128 (9th Cir. 2000). It is not “absolutely clear” that no
amendment could cure this complaint, and so the Court will grant Meer one last
opportunity to file an amended complaint.
The Court will therefore deny Meer’s present motion with leave to file another
motion with a proposed amendment that addresses the Court’s specific concerns
discussed above.1 Meer must file her renewed motion to amend within 20 days from the
date of this decision. Due to past extensions granted to Meer, no further extensions will
be allowed.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that this action is stayed as to

1

Meer filed her motion to amend late, but did file a timely motion to extend the
deadline, asking for more time because she was suffering from health-related ailments. The
Court will grant that motion to extend and finds good cause for the late filing of the motion to
amend.
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defendant Jeff Lilly only, and the stay does not extend to the other co-defendants.
IT IS FURTHER ORDERED, that the motion to extend (docket no. 20) is
GRANTED, and the motion to amend is deemed timely filed.
IT IS FURTHER ORDERED, that the motion to amend (docket no. 25) is denied
without prejudice to plaintiff’s right to file a renewed motion to amend within twenty (20)
days from the date of this decision addressing the concerns set forth in this decision. No
extensions of time will be allowed.
IT IS FURTHER ORDERED, that the motion for protective order (docket no. 28)
is GRANTED IN PART AND DENIED IN PART. It is granted to the extent it seeks an
extension of twenty (20) days to file an answer or objections to the interrogatories
propounded by plaintiff. It is denied in all other respects.
IT IS FURTHER ORDERED, that the motion for definitive ruling (docket no 29)
is DEEMED MOOT.

DATED: October 25, 2012

Honorable B. Lynn Winmill
Chief U. S. District Judge

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