Tracy et al v. CEO, Successor, et al.,

Filing 147

ORDER. IT IS ORDERED that plaintiff's motion to strike 23 ; motion forjudgment 27 ; motion for judgment 34 ; motion to disqualify attorney James W.Puzey 35 ; motion to disqualify attorney Donna M. Osborn 42 ; and motion to not dismiss 51 are DENIED. IT IS FURTHER ORDERED that defendants' motion to dismiss 36 is GRANTED. Defendants Quality Loan Service Corporation; Wright, Finlay & Zak, LLP; CEO, Successor Deusche National Trust Company; and CEO, Successor New Century Home Equality Company are DISMISSED as defendants in this action. IT IS SO ORDERED. Signed by Judge Larry R. Hicks on 12/19/2011. (Copies have been distributed pursuant to the NEF - MLC)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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LINWOOD EDWARD TRACY, JR.; et al.,

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PlaintiffS,

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v.

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CEO, SUCCESSOR FOR DEUTSCHE
NATIONAL TRUST COMPANY; et al.,

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Defendants.
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3:11-cv-0436-LRH-VPC
ORDER

Before the court are plaintiff Linwood Edward Tracy, Jr.’s (“Tracy”) various motions

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including: (1) motion to strike (Doc. #231); motion for judgment against defendant Tiffany Miles

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(Doc. #27); motion for judgment against attorney James W. Puzey (Doc. #34); motion to disqualify

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attorney James W. Puzey (Doc. #35); motion to disqualify attorney Donna M. Osborn (Doc. #42);

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and motion to not dismiss defendant Tiffany Miles (Doc. #51).

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Also before the court is defendant Quality Loan Service Corporation’s (“QLS”) motion to

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dismiss (Doc. #36) to which defendants Wright, Finlay & Zak, LLP (“WFZ”); CEO, Successor

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Deusche National Trust Company (“Duestche”); and CEO, Successor New Century Home Equality

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Company (“New Century”) joined (Doc. ##39, 41).

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I.

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Facts and Background
At its core, this is a wrongful foreclosure and wrongful taxation action. Plaintiff William

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Refers to the court’s docket number.

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Gerald Filion (“Filion”) owned real property in California which was subject to state, county, and

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city tax assessments. The tax assessments went unpaid and eventually the property was foreclosed

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on. Plaintiffs challenge the assessments and foreclosure claiming that the property belonged to a

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non-profit religious organization.

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On June 21, 2011, plaintiffs filed a complaint against defendants alleging violations of their

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First and Fourth Amendment rights under 42 U.S.C. § 1983. See Doc. #1. Thereafter, the parties

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filed the various motions.

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II.

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Motion to Strike, Motion for Judgment, Motion to Disqualify (Doc. ##23, 34, 35)
In his motions, Tracy claims that all documents filed by attorney James W. Puzey (“Puzey”)

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were improperly filed and should be stricken from the record. See Doc. #23. Further, Tracy claims

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that a monetary judgment should be issued against attorney Puzey for filing those documents.

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Doc. #34. Finally, Tracy contends that the court should disqualify attorney Puzey from representing

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certain defendants in this action. Doc. #35.

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The court has reviewed Tracy’s motions and finds that they are totally without merit.

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Attorney Puzey is not a named defendant in this action. Further, Tracy has failed to provide any

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legal authority or rational basis as to why attorney Puzey cannot represent the defendants in this

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action. Puzey is a duly licensed attorney admitted to practice in the state of Nevada. As such, he

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may represent named defendants in this action. Therefore, the court finds that there is no legal

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support for Tracy’s motions concerning attorney Puzey and shall deny them accordingly.

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III.

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Motion for Judgment (Doc. #27)
Tracy also moves this court for an order of judgment against defendant Tiffany Miles

(“Miles”) for failure to file an answer to his complaint. See Doc. #27.
Tracy’s motion is without merit. In order to obtain a default judgment, a party must first

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obtain a clerk’s entry of default which can only be obtained by establishing, through an affidavit,

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that a defendant has failed to plead or otherwise defend itself in the action. See FED . R. CIV . P.

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55(a); Warner Bros. Entm’t Inc. v. Caridi, 346 F. Supp. 2d 1068, 1071 (C.D. Cal. 2004) (citation
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omitted). Here, no clerk’s entry of default has been obtained by Tracy against defendant Miles.

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Thus, there is no basis for the court to enter a default judgment against her.

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IV.

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Motion to Disqualify (Doc. #42)
Tracy further seeks an order disqualifying attorney Donna M. Osborn (“Osborn”) from

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representing certain defendants in this action. Doc. #42. The court has already addressed this issue

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in a prior order and found that there is no basis to disqualify attorney Osborn. See Doc. #85.

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V.

Motion to Not Dismiss (Doc. #51)

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Finally, Tracy seeks an order from the court to not dismiss defendant Miles. See Doc. #51.

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The court has reviewed the present motion and finds that it is without merit. Defendant Miles has

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not filed a motion to dismiss in this action. Thus, there is no basis to support the motion.

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VI.

Motion to Dismiss (Doc. #36)

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To prevail on a claim brought under 42 U.S.C. § 1983, a plaintiff must allege that the

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defendant: (1) while acting under color of any statute, ordinance, regulation, custom or usage of any

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State or territory; (2) subjects, or causes to be subjected, any person within the jurisdiction of the

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United States to the deprivation of any rights, privileges, or immunities secured by the Constitution

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and laws of the United States. Cohen v. Norris, 300 F.2d 24, 30 (9th Cir. 1962); Anderson v.

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Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).

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Here, defendants QLS, WFZ, Duetsche, and New Century are private corporations and

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citizens who were not acting pursuant to any state authority. Accordingly, Tracy cannot maintain

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his civil rights complaint against them. See Jensen v. Lane County, 222 F.3d 570, 574 (9th Cir.

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2000) (holding that liability under 42 U.S.C. § 1983 requires state action). Accordingly, the court

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shall grant moving defendants’ motion to dismiss.

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IT IS THEREFORE ORDERED that plaintiff’s motion to strike (Doc. #23); motion for

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judgment (Doc. #27); motion for judgment (Doc. #34); motion to disqualify attorney James W.

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Puzey (Doc. #35); motion to disqualify attorney Donna M. Osborn (Doc. #42); and motion to not

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dismiss (Doc. #51) are DENIED.

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IT IS FURTHER ORDERED that defendant’s motion to dismiss (Doc. #36) is GRANTED.

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Defendants Quality Loan Service Corporation; Wright, Finlay & Zak, LLP; CEO, Successor

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Deusche National Trust Company; and CEO, Successor New Century Home Equality Company are

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DISMISSED as defendants in this action.

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IT IS SO ORDERED.
DATED this 19th day of December, 2011.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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