Federal National Mortgage Association v. Willis et al
Filing
202
ORDER that #190 Report and Recommendation is ADOPTED in its entirety. FURTHER ORDERED that #39 defendant Willis's Answer is STRICKEN. FURTHER ORDERED that #160 Motion for Sanctions against Willis is GRANTED. FURTHER ORDERED that plaintiff shall prepare and shall file, within fourteen (14) days of the entry of this order, a proposed order for clerks entry of default and for default judgment consistent with the foregoing. Signed by Judge James C. Mahan on 4/26/17. (Copies have been distributed pursuant to the NEF - MMM)
1
2
3
4
UNITED STATES DISTRICT COURT
5
DISTRICT OF NEVADA
6
***
7
8
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
ORDER
Plaintiff(s),
9
v.
10
11
Case No. 2:15-CV-2366 JCM (GWF)
CLARENCE MOSES WILLIS, et al.,
Defendant(s).
12
13
Presently before the court is Magistrate Judge Foley’s report and recommendation
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
James C. Mahan
U.S. District Judge
(“R&R”). (ECF No. 190). Pro se defendant Clarence Moses Willis (“Willis” or “defendant”)
filed an objection (ECF No. 195), to which plaintiff Federal National Mortgage Association
(“Fannie Mae” or “plaintiff”) responded (ECF No. 201).
I.
Facts
This case arises from allegations of fraud, conspiracy to defraud, slander of title, unjust
enrichment, fraudulent conveyance, violation of 18 U.S.C. § 1723(a), trespass, and quiet title to
real property against defendants Willis, Ernest C. Aldridge, Geri L. McKinnon, and Creative
Solutions 4 U, LLC.
Plaintiff owns the following eight (8) real properties: 230 Flint Street, Fernley, Nevada
89408 (APN No. 020-323-06) (the “Flint property”); 330 Garden Lane, Fernley Nevada 89408
(APN No. 020-729-15) (the “Garden property”); 5373 Homeria Street, Las Vegas, Nevada 89113
(APN No. 163-28-720-01) (the “Homeria property”); 7240 Mountain Moss Drive, Las Vegas,
Nevada 89147 (APN No. 163-15-710-093) (the “Mountain Moss property”); 7116 Cornflower
Drive, Las Vegas, Nevada 89128 (APN No. 138-27-515-029) (the “Cornflower property”); 2523
1
Palma Vista Avenue, Las Vegas, Nevada 89121 (APN No. 162-12-310-045) (the “Palma Vista
2
property”); 4912 Canadian Drive, Las Vegas, Nevada 89130 (APN No. 125-36-814-012) (the
3
“Canadian property”); and 5654 Thunder Spirit Street, Las Vegas, Nevada 89148 (APN No. 163-
4
30-816-006) (the “Thunder Spirit property”) (collectively, as the “subject properties”). (ECF No.
5
41 at 5–14).
6
Plaintiff alleges that over the course of several months, defendants have engaged in a
7
conspiracy to defraud plaintiff of its interest in these eight (8) Nevada properties. Plaintiff further
8
asserts that defendants, without any legal right or authorization by plaintiff, prepared, executed,
9
and recorded deeds purporting to transfer title from plaintiff to defendants.
10
It appears that defendants executed all eight (8) schemes using substantially similar
11
patterns. Fannie Mae acquired its ownership interest in a subject property pursuant to a trustee’s
12
deed upon sale recorded in the official records for the appropriate county. Then, defendant
13
Aldridge would record and subsequently re-record a quitclaim deed. For each property, plaintiff
14
would purportedly deed the property to defendant Aldridge for the amount of $10.00. Defendant
15
Willis would then sign the quitclaim deed as purported authorized agent for Fannie Mae. The
16
quitclaim deeds would list plaintiff’s mailing address as 4912 Canadian Drive, Las Vegas, Nevada
17
89130.
18
Plaintiff asserts that defendant Willis is not, nor has ever been, an employee of Fannie Mae
19
and is not an agent or authorized representative of plaintiff in any capacity. Moreover, 4912
20
Canadian Drive, Las Vegas, Nevada 89130 is not plaintiff’s mailing address. Plaintiff further
21
claims that it never authorized defendant Aldridge to prepare, execute, or record any quitclaim
22
deed, nor did plaintiff authorize defendant Willis to prepare, execute, or record any quitclaim deed
23
on its behalf.
24
Four (4) of the properties, as detailed fully in plaintiff’s motions for TRO and preliminary
25
injunction, have had a grant, bargain, sale deed recorded in the records of Clark or Lyons County.
26
(ECF No. 17). “Pastor Ernest C. Aldridge and his successor, a corporate sole,” has purportedly
27
deeded each of these properties to one of defendants McKinnon, CS4U, or Willis for $10.00.
28
James C. Mahan
U.S. District Judge
-2-
1
On January 13, 2016, the court granted plaintiff’s ex parte motion for a TRO. (ECF No.
2
19). On January 26, 2016, the court granted plaintiff’s motion for preliminary injunction. (ECF
3
No. 32).
4
On February 3, 2016, defendant Aldridge filed a 12(b) motion to dismiss. (ECF No. 34).
5
On February 25, 2016, plaintiff filed an amended complaint, which contained no changes to
6
parties. (ECF No. 41). The amended complaint alleges nineteen (19) causes of action against the
7
various defendants. (ECF No. 41).
8
On July 21, 2016, plaintiff served written discovery requests including interrogatories,
9
requests for production, and requests for admission on Willis. On August 22, 2016, Willis filed a
10
motion for protective order (ECF No. 86) in regard to plaintiff’s written discovery. On September
11
14, 2016, the court denied Willis’s motion and instructed him to respond to plaintiff’s written
12
discovery requests by September 27, 2016. Willis, however, did not respond to plaintiff’s written
13
discovery. After Willis informed plaintiff that he was not available to attend his deposition
14
scheduled for September 16, 2016, plaintiff rescheduled and re-noticed his deposition to December
15
21, 2016. On multiple occasions, plaintiff communicated with Willis in regard to his deposition
16
in an attempt to coordinate. Willis did not attend the deposition despite having received notice.
17
Plaintiff requests that the court impose sanctions against Willis, pursuant to Federal Rule
18
of Civil Procedure 37, for failing to provide discovery and for failing to comply with the court’s
19
orders. Willis argues that he was not required to “offer information” to plaintiff because plaintiff
20
did not comply with Rule 26. (ECF No. 168 at 2).
21
On September 21, 2016, the court denied the following motions: ECF Nos. 47, 66, 74, 78,
22
80, 81, 83, and 90). (ECF No. 114). On October 25, 2016, the court denied the following motions:
23
ECF Nos. 119, 120, and 121. (ECF No. 131). On March 16, 2017, Willis filed a motion to dismiss
24
for lack of subject matter jurisdiction. (ECF No. 181), which the court denied on March 20, 2017
25
(ECF No. 185).
26
In the R&R, Magistrate Judge Foley recommends that plaintiff’s motion for sanctions
27
against Willis (ECF No. 160) be granted, that Willis’s answer (ECF No. 39) be stricken, and that
28
default be entered against defendant Willis. (ECF No. 190).
James C. Mahan
U.S. District Judge
-3-
In his objection, Willis requests that the court disregard the magistrate judge’s
1
2
recommendation because Mr. Anthony R. Sassis’s affidavit was false. (ECF No. 195 at 3).
3
II.
Legal Standard
4
A party may file specific written objections to the findings and recommendations of a
5
United States magistrate judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);
6
LR IB 3-2. Where a party timely objects to a magistrate judge’s report and recommendation, the
7
court is required to “make a de novo determination of those portions of the [report and
8
recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). The court “may accept,
9
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.”
10
Id.
11
Pursuant to Local Rule IB 3-2(a), a party may object to the report and recommendation of
12
a magistrate judge within fourteen (14) days from the date of service of the findings and
13
recommendations. Similarly, Local Rule 7-2 provides that a party must file an opposition to a
14
motion within fourteen (14) days after service of the motion.
15
III.
Discussion
16
Rule 37(b)(2)(A) provides that courts may strike pleadings or dismiss an action if a party
17
fails to obey an order to provide or permit discovery. Fed. R. Civ. P. 37(b)(2)(A). Rule 37(d)(3)
18
provides the same recourse if a party fails to appear for a deposition. Fed. R. Civ. P. 37(d)(3).
19
Because the sanction of dismissal is drastic, courts must weigh five factors before entering default:
20
(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its
21
dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring
22
disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Henry v.
23
Gill Indus., Inc., 983 F.2d 943, 948 (9th Cir. 1993). “The first two of these factors favor the
24
imposition of sanctions in most cases, while the fourth cuts against a . . . dismissal sanction. Thus
25
the key factors are prejudice and the availability of lesser sanctions.” Id.
26
In considering these factors, the magistrate judge found that the factors weigh in favor of
27
imposing terminal sanctions and entering default against Willis. (ECF No. 190). The magistrate
28
judge found that Willis has shown no intention of following the court’s orders or the local rules by
James C. Mahan
U.S. District Judge
-4-
1
his refusal to appear for his deposition and failure to respond to plaintiff’s written discovery
2
requests. (ECF No. 190). Further, the magistrate judge found that resolution on the merits is
3
obstructed by Willis’s failure to comply with his discovery obligations and that no less drastic
4
sanctions are available that would suffice to move the instant case forward. (ECF No. 190).
5
In his objection, Willis fails to make any specific objections to the magistrate judge’s
6
findings. (ECF No. 195). Rather, Willis contests the accuracy of Mr. Sassi’s affidavit and argues
7
that his answer was timely and should remain on the record. (ECF No. 195). Willis also reiterates
8
various arguments that the court has previously rejected as meritless. (See ECF Nos. 114, 131,
9
185).
10
Upon reviewing the recommendation and underlying filings, the court finds that good cause
11
appears to adopt the magistrate judge’s findings. Willis fails to cite to any authority in support of
12
his arguments, nor does he set forth any evidence in support thereof. The court has struck
13
numerous improper filings made by Willis, and the Ninth Circuit has dismissed numerous notices
14
of appeal filed by Willis. Further, Willis has been cautioned in numerous orders that compliance
15
with the local and federal rules is mandatory.
16
Further, it is well established that the district courts have the inherent power to control their
17
dockets and manage their affairs; this includes the power to strike or deny motions to streamline
18
motion practice and promote judicial efficiency. Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d
19
402, 404–05 (9th Cir. 2010); see also Atchison, Topeka & Santa Fe Ry. v. Hercules, Inc., 146 F.3d
20
1071, 1074 (9th Cir. 1998) (recognizing inherent power to dismiss an action to sanction abusive
21
conduct).
22
In light of the foregoing, the court finds that the aforementioned factors weigh in favor of
23
striking Willis’s answer (ECF No. 39) and entering default against Willis.1 Based on the record
24
and Willis’s repeated disregard for the local and federal rules, as well as the court’s orders, the
25
26
27
28
James C. Mahan
U.S. District Judge
1
Furthermore, the court finds that the seven factors articulated in Eitel v. McCool, 782
F.2d 1470, 1471–72 (9th Cir. 1986), weigh in favor of entering default judgment against defendant
Willis. These factors are: (1) the possibility of prejudice to plaintiff, (2) the merits of the claims,
(3) the sufficiency of the complaint, (4) the amount of money at stake, (5) the possibility of a
dispute concerning material facts, (6) whether default was due to excusable neglect, and (7) the
policy favoring a decision on the merits. Id.
-5-
1
court finds that no less drastic sanctions are available. Therefore, the court will adopt Magistrate
2
Judge Foley’s R&R in its entirety.
3
IV.
Conclusion
4
Accordingly,
5
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Magistrate Judge
6
7
8
9
10
Foley’s R&R (ECF No. 190) be, and the same hereby is, ADOPTED in its entirety.
IT IS FURTHER ORDERED that plaintiff’s motion for sanctions against Willis (ECF No.
160) be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that defendant Willis’s answer (ECF No. 39) be, and the
same hereby is, STRICKEN.
11
IT IS FURTHER ORDERED that plaintiff shall prepare and shall file, within fourteen (14)
12
days of the entry of this order, a proposed order for clerk’s entry of default and for default judgment
13
consistent with the foregoing.
14
15
16
DATED April 26, 2017.
__________________________________________
UNITED STATES DISTRICT JUDGE
17
18
19
20
21
22
23
24
25
26
27
28
James C. Mahan
U.S. District Judge
-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?