Unpublished Disposition, 923 F.2d 861 (9th Cir. 1988)

MEMORANDUM^** 

John Patrick Acord and his mother Marcella M. Ortega have

appealed in pro se from the order granting

plaintiffs' motion for summary judgment.

Appellants raise the

following arguments on appeal:

1. The district court erred in denying appellants' motion

for appointment of counsel.

2. The district court erred in granting appellees' motion

for summary judgment without a hearing.

3. The district court erred in granting appellees' motion

for summary judgment without giving appellants the

opportunity to present evidence.

4. The district court erred in granting appellees' motion

for summary judgment since there is a genuine

issue of material fact upon which

reasonable men might differ.

5. Appellants were denied their constitutional right to a

trial by jury when the district court granted

appellees' motion for summary judgment.

FACTUAL BACKGROUND

A number of purchasers of securities in Regal Laboratories Ltd., a Nevada limited partnership, filed this diversity action for misappropriation by fraud and deceit on March 21, 1984. On June 24, 1986, they amended their complaint. The amended complaint alleged that appellants were agents and employees of Regal Laboratories Ltd. and that, during the course of the sales of the securities, appellants misappropriated by fraud and deceit the sum of $500,000.00 in partnership funds for personal use. On April 14, 1987, appellant Acord filed a motion for appointment of counsel. The district court denied this motion.

On January 11, 1988, appellees filed a motion for summary judgment. In their motion they referred to a prior criminal case in which appellants were defendants. In that case appellants pled guilty to conspiracy to defraud and interstate transportation of property taken by fraud. The defendants' conduct in the criminal case forms the factual basis for this civil fraud action. On July 15, 1988, the district court ordered that appellees' motion for summary judgment be held in abeyance until August 1, 1988, to allow appellants an opportunity to satisfy the requirements of Rule 56 of the Federal Rules of Civil Procedure. In its order the court held that it

may not enter summary judgment against a pro se prisoner litigant until the court has advised the prisoner of the requirements of Rule 56....

Defendants are hereby notified that unless they file points and authorities in opposition to plaintiffs' motion for partial summary judgment on or before August 1, 1988, the court will grant [p]laintiffs' motion and finally resolve that portion of the case to which the motion is addressed. It may also be necessary for [d]efendants to submit evidence sufficient to withstand [p]laintiffs' motion for summary judgment. Defendants must show either (1) that there is a genuine issue of material fact, or (2) that plaintiffs are not entitled to judgment as a matter of law.

On August 10, 1988, appellants' opposition to appellees' motion for summary judgment was filed. In their opposition the appellants denied all allegations set forth in appellees' motion for summary judgment and stated that they believed that there was no further reason for additional declarations or a memorandum of points and authorities. Appellants' opposition to the summary judgment motion also stated

[f]urthermore, the facts cited in the [p]laintiffs' Motion for Summary Judgment are inextricably interwoven with the defendant's plea of guilty to certain charges in a criminal case before this same court. Both defendants have filed motions pursuant to Title 28 U.S.C. § 2255 to vacate or set aside their convictions as being obtained by the exercise of [f]raud and deceit by their principal attorney Peter Brown. Defendant Ortega's motion was filed July, 1987, and has yet to be acted upon by this court. Defendant Acord's motion was filed in June, 1987, a hearing was held by this court and a decision is promised shortly.

On October 24, 1988, the district court granted the appellees' summary judgment motion against appellants. In its order the district court stated as follows:

Plaintiffs alleged that Defendants unlawfully induced them, by means of fraudulent misrepresentations, to purchase unregistered, non-exempt securities--subscription agreements investing in a limited partnership known as "Regal Laboratories Ltd."

The transactions underlying this action were also the partial basis of a criminal indictment against Defendants John Patrick Acord, ... and Marcella Ortega. See CR-S-85-66-LDG. These same Defendants pleaded guilty to Count I of that indictment, thereby admitting: (1) that they conspired to defraud plaintiffs and others by knowingly making false, fraudulent, and misleading representations to induce them to invest in Regal Laboratories Limited; and (2) that as a result thereof, they received subscription agreements from Plaintiffs in various amounts.

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Based upon the guilty pleas entered in CR-S-85-66-LDG and all related records and papers on file therein, and based upon the affidavits and exhibits filed in support of Plaintiffs' motion, the court finds that Plaintiffs have submitted sufficient and substantial evidence in support of their claims for relief. Defendants have been duly noticed of the motion, the court's intent to grant the motion, and the requirements of Rule 56 to defeat the motion. Defendants, however, have not submitted any evidence in opposition to the motion and have not established that Plaintiffs are not entitled to judgment as matter of law.

(footnotes omitted).

DECISION

I. Sufficiency of Appellants' Brief on Appeal

The first issue we must resolve is whether the appellants have waived their contentions on appeal because their brief fails to adhere to Rule 28(a) (4) of the Federal Rules of Appellate Procedure. Rule 28(a) (4) provides that " [t]he argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on." Fed. R. App. P. 28(a) (4). Appellants' brief consists of a two-page argument stating conclusions without any reference to judicial authority, statutes, or the record.

In Northwest Acceptance Corp. v. Lynnwood Equipment, Inc., 841 F.2d 918 (9th Cir. 1988), we held that where appellants make a contention on appeal without identifying the basis thereof in either their opening or reply brief, the court deems the contention waived. Id. at 924. We are required to take into consideration, however, that the appellants in the case at bar are pro se litigants whereas the appellants in Northwest Acceptance were represented by counsel. In Balistreri v. Pacifica Police Department, 901 F.2d 696 (9th Cir. 1990), we rejected the argument "that a pro se appeal should be dismissed for failure to comply with the formal requirements of appellate briefs under Fed. R. App. P. 28." Id. at 699. "This court recognizes that it has a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements." Id. Accordingly, as required under Balistreri, we will construe appellants' brief liberally and consider the merits of their claim.

Acord argues that he was denied his constitutional right to be represented by counsel when the district court denied his motion for appointment of counsel. Both appellants raise this issue in their brief. Appellant Ortega, however, had not filed a motion for appointment of counsel with the district court. Therefore, we consider the merits of this issue only with respect to Acord. A district court's decision on a motion for appointment of counsel pursuant to 28 U.S.C. § 1915(d) is reviewed for an abuse of discretion. McElyea v. Babbitt, 833 F.2d 196, 199-200 (9th Cir. 1987).

Generally, there is no constitutional right to counsel in a civil case. United States v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986). We have, however, recognized that in exceptional circumstances appointment of counsel may be proper. In Bradshaw v. Zoological Society, 662 F.2d 1301 (9th Cir. 1981), we held that Title VII litigants are presumptively incapable of properly handling the complexities of such cases. Id. at 1313. Here, no Title VII claims have been raised. In certain circumstances a pro se litigant who has claimed poverty may be appointed counsel. In United State v. McQuade, 647 F.2d 938 (9th Cir. 1981), cert. denied, 456 U.S. 958 (1982), we held that when a motion for appointment of counsel under section 1915 includes a claim of poverty, " 'it is proper and indeed essential for the supporting affidavits to state the facts as to affiant's poverty with some particularity, definiteness and certainty.' " Id. at 940 (citations omitted). We also held that it was not an abuse of discretion "to deny the motion when the appellants were unable, or unwilling, to verify their poverty." Id.

In his motion for appointment of counsel, appellant Acord stated that he was "without funds to defend himself." He also stated that his incarceration would prevent him from making the necessary court appearances to defend himself. He did not state any facts, or submit any affidavits, however, which would support his claim of poverty with the particularity, definiteness and certainty required by McQuade. Therefore, the district court did not abuse its discretion in denying appellants' motion for appointment of counsel.

III. Summary Judgment Without a Hearing and Without the Opportunity to Present Evidence

Appellants argue that the district court erred in granting plaintiffs' motion for summary judgment without a hearing and without the opportunity to present evidence. While district courts may not preclude a party from requesting oral argument, they are authorized to " 'provide by rule that a party desiring oral argument on a motion for summary judgment must apply therefor, in the absence of which oral argument will be deemed to have been waived.' " Fernhoff v. Tahoe Regional Planning Agency, 803 F.2d 979, 983 (9th Cir. 1986) (citations omitted). The United States District Court for the District of Nevada has adopted such a rule. D. Nev. R.Practice 16(g). Id.

In the case before us, the plaintiffs filed a motion for summary judgment on January 11, 1988. On July 15, 1988, the district court ordered the motion be held in abeyance. Appellants had notice of the pending motion and knew of their duties under Rule 56(e) of the Federal Rules of Civil Procedure. Appellants had more than seven months from the date of the filing of the summary judgment, and two weeks from the district court's decision to hold appellees' motion in abeyance, to request a hearing, or to present evidence. Appellants, however, failed to do so. A district court's failure to grant an oral hearing on a motion for summary judgment does not constitute reversible error in the absence of prejudice. Houston v. Bryan, 725 F.2d 516, 518 (9th Cir. 1984). Here, nothing in the record or in the briefs suggests any prejudice resulting from the district court's action.

Appellants contend that " [t]he only excuse for entering summary judgment is that there is not a single scintilla of an issue upon which reasonable men may disagree and that the individuals against which summary judgment is issued have no defenses whatsoever to the charges levied against them." Appellants' Brief at 2. This is not an accurate statement of the law. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505 (1986), the Supreme Court held that " [t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Anderson, 477 U.S. at 252. A summary judgment motion is proper when there is no genuine issue of material fact. Id. at 248. A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. A fact is "material" if a dispute over it might affect the outcome of the suit under the governing law. Id. Furthermore, Rule 56(e) of the Federal Rules of Civil Procedure provides that " [w]hen a motion for summary judgment is made ... an adverse party may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial."

The district court properly entered a motion for summary judgment since there was no genuine issue of material fact. We review a district court's grant of summary judgment de novo. Kruso v. Int'l Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). In their opposition to the motion for summary judgment, appellants denied all allegations set forth in appellees' motion and stated that they believed that there was no further reason for additional declarations or a memorandum of points and authorities. The only issue appellants raised in their opposition to the motion for summary judgment was that the district court could not rely on their guilty pleas because both had filed motions to vacate or set aside their guilty pleas and an appeal on those motions was pending.

Rule 201 of the Federal Rules of Evidence permits judicial notice of a fact that is "not subject to reasonable dispute in that it is ... (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid 201(b). "In particular, a court may take judicial notice of its own records in other cases, as well as the records of an inferior court in other cases." United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). We agree with the Fourth Circuit that a district court may take judicial notice of appellants' guilty pleas. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (in suit under fire policy that resulted in settlement favorable to insured, appellate court reviewing trial court's determination that insurer's offer of judgment could not be revoked even on grounds of fraud could take judicial notice of postsettlement fact that insureds pled guilty to arson accessory charges).

Furthermore, the doctrine of collateral estoppel "precludes the relitigation of those issues actually decided and necessarily involved in the determination of the prior judgment." United States v. Bejar-Matrecios, 618 F.2d 81, 83 (9th Cir. 1980). " [T]his court has extended the doctrine of collateral estoppel to preclude a defendant in a later criminal proceeding from relitigating facts that were necessarily decided against him during a criminal proceeding." Id. Both a guilty plea and a jury verdict provide the basis to invoke the doctrine of collateral estoppel in a subsequent proceeding. Id. Additionally, even when an appeal as to the validity of an appellant's guilty plea is pending, the district court is not precluded from applying the doctrine of collateral estoppel and may prevent appellants from denying their admissions. See Robi v. Five Platters, Inc., 838 F.2d 318, 327 (9th Cir. 1988) (federal district court judgment in favor of departing shareholder and against corporation generated issue preclusion against corporation, even though appeals were taken from the district court judgment). The district court properly took judicial notice of the appellants' guilty pleas in the prior criminal proceeding. The appellants' plea of guilty to a conspiracy to defraud and interstate transportation of property taken by fraud left no genuine issue of material fact to be litigated. Furthermore, appellants failed to set forth specific facts in their opposition to the motion for summary judgment showing that there was a genuine issue of material fact in dispute. The district court properly granted the plaintiffs' motion for summary judgment.

Appellants contend that the district court's grant of plaintiffs' summary judgment motion denied them the right to a trial by jury. It has long been established that " [i]f the district court correctly concluded that appellees were entitled to a summary judgment, appellant cannot complain of the deprivation of a jury trial." Page v. Work, 290 F.2d 323, 334 (9th Cir. 1961), cert. denied, 368 U.S. 875 (1961). We conclude that the district court correctly held that plaintiffs were entitled to a summary judgment. Therefore, appellants cannot now complain about the deprivation of a jury trial.

AFFIRMED.