Klein v. Wings Over the World Ministries et al

Filing 73

MEMORANDUM DECISION AND ORDER granting 69 Motion to Strike 61 Notice of Filing, 62 Memorandum (NOT to motion), 63 Notice of Filing, 64 Notice of Filing, 65 Notice of Filing; granting 69 Motion for Sanctions: Receiver is to file an Affidavit of Attorney Fees and Costs within 7 days from the date of this Order. Signed by Magistrate Judge Dustin B. Pead on 11/22/12 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
R. WAYNE KLEIN, the Court-Appointed
Receiver of U.S. Ventures LC, Winsome
Investment Trust, and the assets of Robert
J. Andres and Robert L. Holloway,

MEMORANDUM DECISION & ORDER
Case No. 2:12-cv-00023

Plaintiff,

United States District Court
Judge David Nuffer

v.
WINGS OVER THE WORLD
MINISTRIES and TERRY L. HARPER,

Magistrate Judge Dustin Pead

Defendants.

Pursuant to a 28 U.S.C. §636(b)(1)(B) referral (doc. 27), the following matter is currently
pending before this Court: (1) the Receiver, R. Wayne Klein’s (the Receiver) “Motion To Strike
Docket Entries 61-65 and For Sanctions” against Defendant Terry L. Harper (Defendant) (doc.
69).
I. BACKGROUND
On October 10, 2013, this Court issued a Report and Recommendation (doc. 60) granting
the Receiver’s Motion To Amend (doc. 46) and the Receiver’s Motion to Strike (doc. 44)
numerous documents filed by Defendant (doc. 60). Additionally, because Defendant’s
submissions violated the Court’s rules in “format, substance and procedure” the Court warned
that “any future motions filed by Defendant Harper that do not comply with the Court’s rules
and/or address issued that have been previously determined by this Court, be stricken and
Defendant Harper be ordered to pay the Receiver’s costs and fees incurred in responding to any

such motion” (doc. 60). Despite Defendant’s objection thereto (doc. 66), this Court’s Report and
Recommendation was adopted in its entirety by District Court Judge Nuffer on October 25, 2013
(doc. 67).
II. PENDING MOTION
The Receiver’s motion moves to strike (doc. 69) the following documents submitted by
Defendant: “Manditory [sic] Judicial Notice Of Receiver’s Failure To Meet A ‘Statute Of
Limitations’ Requirement, And Notice Of Compulsary [sic] Action Required By The Court” (doc
61), “Memorandum Of Law And Constructive Notice For Certification And Findings Of Fact,
Conclusions Of Law Regarding ‘If’ Real Party Of Interest Is Present” (doc. 62), “Manditory [sic]
Judicial Constructive Notice Of Estoppel Of Receiver’s Claim Of Respondent Alleged
Admissions And Opposition Of Alleged Claimed Admissions Into The Record” (doc. 63),
“Constructive Notice And Demand To Certify The Record Under Title 28 Section 754 Of
Receiver As To The Court’s Jurisdiction Or Dismiss Under (Coram Non Judice)” (doc. 64) and
“Constructive Notice And Affidavit Statement Of Fraud On The Court And Notice Of
Forbearance Of Suit” (doc. 65).
A review of these filings reveals that they suffer from the same defects as Defendant’s
prior filings that were previously stricken by the Court. Specifically, in addition to other
deficiencies, the filings at issue fail to conform to the Court’s formatting requirements, fail to
identify the specific relief requested, and address jurisdictional and standing issues that the Court
has already determined. As a result, and consistent with the Court’s prior admonition, the Court
hereby strikes Defendant’s filings at docket numbers 61, 62, 63, 64 and 65. Further, based upon

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Defendant’s violation of the civil rules in blatant disregard of the Court’s prior Ruling,1
Defendant shall be required to pay the Receiver’s attorney fees and costs incurred in responding
to Defendant’s frivolous filings. Accordingly, the Receiver is requested within seven (7) days
from the date of this Order to file an affidavit of costs and fees incurred in filing its Motion To
Strike (doc. 69).
Finally, Defendant is once again reminded that the Court will not accept frivolous filings
that fail to comply with local and federal rules and that continue to raise issues already
determined by the Court. Continued filings of such nature will require the Court to consider
more serious sanctions including contempt proceedings or the entry of a default judgment.

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Five days after the Court issued its Report and Recommendation warning Defendant that
it would impose sanctions if he continued to submit frivolous filings, Defendant filed his
frivolous “Manditory [sic] Judicial Notice Of Receiver’s Failure To Meet A ‘Statute Of
Limitations’ Requirement, And Notice Of COmpulsary Action Required By The Court” (doc 61).
The frivolous filings at docket numbers 62-65 were also filed shortly thereafter.
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ORDER
Based upon the foregoing, the Court hereby ORDERS that:
1. The Receiver’s “Motion To Strike Docket Entries 61-65 and For Sanctions” is
GRANTED (doc. 69).
2. The Receiver is requested, within seven (7) days from the date of this Order, to file an
Affidavit of Attorney Fees and Costs incurred in filing its Motion To Strike.
DATED the 22nd day of October,
BY THE COURT:

___________________
Dustin B. Pead
U.S. Magistrate Judge

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