Madison v. First Magnus Financial Corporation et al, No. 2:2008cv01562 - Document 254 (D. Ariz. 2009)
Court Description: ORDER granting 189 Motion to Dismiss ; granting 192 Motion to Dismiss ; granting 211 Motion to Dismiss ; granting 214 Motion to Dismiss ; granting 215 motion to dismiss, granting 225 Motion to Dismiss ; granting 246 Motion for summary d isposition ; granting 249 Motion for Protective Order; granting 251 Motion for summary disposition. That Defendants Litton Loan Servicing, U.S. Bank National As sociation, HomEq Servicing, Mortgage Electronic Registration Systems, Washington Mutu al Bank, DHI Title of Arizona, Eva Espinoza, Sterling Mortgage, GMAC Mortgage, Homecomings Financial, and Executive Trustee Services are DISMISSED WITH PREJUDICE. Plaintiff may not conduct discovery involving Defendants Eva Espinoza and Monique Mald onado, including depositions scheduled for August 26, 2009, until the parties have conferred as required by Rule 26(f) or otherwise stipulate. That Plaintiff show cause as to why she should not be required to pay Defendant DHI Title of Arizona and E va Espinoza's reasonable expenses incurred in making their motion for a protective order. Plaintiff shall file a memorandum doing so before 5:00 P.M. on AUGUST 31, 2009. See Fed. R. Civ. P. 37(a)(5). Defendants DHI Title of Arizona and Eva Espinoza shall otherwise comply with Local Rule 54 (d) before 5:00 P.M. on AUGUST 31, 2009. Signed by Judge G Murray Snow on 8/19/09.(DMT, )
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Madison v. First Magnus Financial Corporation et al 1 Doc. 254 WO 2 NOT FOR PUBLICATION 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) vs. ) ) F I R S T M A G N U S F I N A N C I A L) ) CORPORATION, et al., ) ) Defendants. ) ) SHERRYL L. MADISON, No. CV-08-1562-PHX-GMS ORDER 16 17 Pending before the Court are: (1) the Motions to Dismiss of Defendants Litton Loan 18 Servicing and U.S. Bank National Association (Dkt. # 189), Defendants HomEq Servicing 19 and Mortgage Electronic Registration Systems (Dkt. # 192), Defendant Washington Mutual 20 Bank (Dkt. # 211), Defendants DHI Title of Arizona and Eva Espinoza (Dkt. # 214), and 21 Defendant Sterling Mortgage (Dkt. # 225); (2) Defendants GMAC Mortgage, Homecomings 22 Financial, and Executive Trustee Services joinder in the Motion to Dismiss of Defendants 23 Fremont Investment & Loan and Mortgage Electronic Registration Systems (Dkt. # 215); (3) 24 the Motions for Summary Disposition of Defendants DHI Title of Arizona and Eva Espinoza 25 (Dkt. # 246) and Defendants HomEq Servicing (Dkt. # 251); (4) Defendants GMAC 26 Mortgage, Homecomings Financial, and Executive Trustee Services joinder in the Motion 27 for Summary Disposition of Defendants DHI Title of Arizona and Eva Espinoza (Dkt. # 28 Dockets.Justia.com 1 248); and (5) the Motion for Protective Order of DHI Title and Eva Espinoza (Dkt. # 249). 2 For the following reasons, the Court grants the motions. 3 I. Motions to Dismiss/Motions for Summary Disposition 4 Local Rule 7.2(c) states that “[t]he opposing party shall . . . have ten (10) days after 5 service in a civil or criminal case within which to serve and file a responsive memorandum.” 6 On July 22, 2009, the Court informed Plaintiff that she had failed to comply with Local Rule 7 7.2(c) and extended the time in which Plaintiff could respond to the motions filed by 8 Defendants Litton Loan Servicing, U.S. Bank National Association, HomEq Servicing, 9 Mortgage Electronic Registration Systems, Washington Mutual Bank, DHI Title of Arizona, 10 Eva Espinoza, Sterling Mortgage, GMAC Mortgage, Homecomings Financial, and Executive 11 Trustee Services, to and including August 7, 2009. (Dkt. # 231.) Plaintiff was warned that 12 failure to file a response brief “may be deemed consent to the . . . granting of the motion and 13 the Court may dispose of the motions summarily” (id. at 2), and this “could result in the 14 dismissal of certain claims and defendants” (id.). Despite the warning and extension of time, 15 Plaintiff failed to file responses to the motions. 16 Local Rule 7.2(i) provides that an unrepresented party’s failure to respond to a motion 17 “may be deemed consent to the . . . granting of the motion and the Court may dispose of the 18 motion summarily.” LRCiv 7.2(i); see also Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) 19 (holding that a district court did not err in dismissing a pro se plaintiff’s complaint for failing 20 to comply with a local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) 21 (holding that a district court did not abuse its discretion in dismissing a pro se plaintiff’s 22 complaint for failing to comply with a court order). The Ninth Circuit has made clear that 23 “[p]ro se litigants must follow the same rules of procedure that govern other litigants.” King 24 v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986); see also Jacobsen v. Filler, 790 F.2d 1362, 25 1364-65 (9th Cir. 1986) (stating that pro se litigants should not be treated more favorably 26 than parties represented by attorneys). 27 /// 28 /// -2- 1 2 3 4 The Ninth Circuit has established a five-part test to determine whether the dismissal sanction is just: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. 5 Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998) (internal 6 quotations omitted); see also Ferdik, 963 F.2d at 1260. However, “[t]his ‘test’ is not 7 mechanical. It provides the district court with a way to think about what to do, not a set of 8 conditions precedent for sanctions or a script that the district court must follow[.]” Conn. 9 Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). 10 “[W]here a court order is violated, factors 1 and 2 support sanctions and 4 cuts against case11 dispositve sanctions, so 3 and 5 . . . are decisive.” Valley Eng’rs, 158 F.3d at 1057. 12 Factor 3 – Risk of Prejudice to Defendants 13 Here, Defendants will be prejudiced by Plaintiff’s ongoing refusal to respond to their 14 motions to dismiss and failure to comply with the Court’s orders. Defendants have expended 15 significant amounts of time and finances to timely address Plaintiff’s claims. Plaintiff’s 16 failure to respond, if permitted to continue, would only frustrate Defendants’ efforts and 17 cause them to incur additional expenses. 18 In the Second Amended Complaint (“SAC”), Plaintiff again asserts collective 19 allegations of misconduct giving rise to twenty-two causes of action against all named 20 defendants, despite the fact that the majority of the defendants were apparently involved with 21 only one of Plaintiff’s six properties and despite the fact that many of the defendants were 22 not involved during the times in which Plaintiff either refinanced or purchased her properties. 23 (See Dkt. # 181.) Plaintiff included collective allegations and claims in her SAC despite the 24 Court’s Order explaining why doing so is improper and despite the Court’s explicit direction 25 that she “specifically allege each legal right Plaintiff believes was violated, the specific 26 defendant(s) who violated the right, a sufficient factual context under Twombly to give the 27 defendant notice of what conduct or omission gives rise to the violation, . . . and the specific 28 -3- 1 injury Plaintiff suffered.” (Dkt. # 143 at 8.) In that Order, the Court also warned Plaintiff 2 that “[i]f [she] elects to file an amended complaint and fails to comply with the provisions 3 of this Order, the action will be dismissed pursuant to Federal Rule of Civil Procedure 4 41(b).” (Id.) 5 In their Motions to Dismiss, Defendants seek dismissal with prejudice, arguing that 6 dismissal is warranted because: (1) Plaintiff failed to comply with the Court’s prior orders 7 and the Federal Rules of Civil Procedure; (2) Plaintiff failed to state a claim upon which 8 relief could be granted; (3) Plaintiff’s claims are barred under the doctrine of claim 9 preclusion; and (4) Plaintiff’s claims are barred by the applicable statute of limitations. (Dkt. 10 ## 189, 192, 211, 214, 215, 225.) These arguments are fairly and timely raised in this action 11 and deserve a timely response by Plaintiff. The Court has been flexible in ensuring that 12 Plaintiff has had an opportunity to plead her claims and be heard in response to Defendants’ 13 motions. To continue to permit Plaintiff to engage in delay and silence would be to 14 significantly prejudice those defendants actively seeking to clarify and narrow this action. 15 Therefore, factor 3 weighs heavily in favor of dismissal. 16 Factor 5 – Availability of Less Drastic Sanctions 17 Factor 5 “involves consideration of three subparts: whether the court explicitly 18 discussed alternative sanctions, whether it tried them, and whether it warned the recalcitrant 19 party about the possibility of dismissal.” Valley Eng’rs, 158 F.3d at 1057. While less drastic 20 sanctions may be available, they are not appropriate here. The Court has granted Plaintiff 21 ample time to respond to Defendants’ motions and has explicitly warned her that failure to 22 do so could result in granting of the motion and “could result in the dismissal of certain 23 claims and certain defendants.” (Dkt. # 231 at 1-2.) Plaintiff nonetheless failed to respond 24 or take any other action to prosecute her claims. Therefore, factor 5 weighs in favor of 25 dismissal. 26 With four factors weighing in favor of dismissal and one factor weighing against, 27 dismissal is appropriate here. See, e.g., Wystrach v. Ciachurski, 267 F. App’x 606, 607-08 28 (9th Cir. 2008) (upholding dismissal under Local Rule 7.2(i) where the first three factors all -4- 1 weighed in favor of dismissal); Ghazali, 46 F.3d at 53-54 (upholding summary dismissal of 2 a pro se plaintiff’s action for failure to follow the court’s local rules). 3 II. Motion for Protective Order 4 On June 15, 2009, Plaintiff noticed depositions on Defendants Monique Yabo, Eva 5 Espinoza, Tony Smart, Latoiya Warrick, and Jessenia Garcia. (Dkt. ## 202-206.) On June 6 18, 2009, Defendants DHI Title, Eva Espinoza, and Monique Maldonado (formerly Monique 7 Yabo) filed their objection to the notices and moved to quash the subpoenas. (Dkt. # 210.) 8 On August 3, 2009, the Court granted the motion to quash reminding Plaintiff that she “is not 9 entitled to engage in premature discovery.” (Dkt. # 241 at 3.) 10 Nevertheless, on July 31, 2009, Plaintiff again noticed depositions on Defendants 11 Monique Yabo and Eva Espinoza. (Dkt. ## 242-43.) Despite attempts by Defendants DHI 12 Title of Arizona and Eva Espinoza to convince Plaintiff to withdraw the deposition notices, 13 as of August 17, 2009, Plaintiff has failed to do so. Therefore, Defendants DHI Title, Eva 14 Espinoza, and Monique Maldonado (formerly Monique Yabo) again file their objection to 15 the deposition notices and move for a protective order pursuant to Federal Rule of Civil 16 Procedure 26(c). (Dkt. # 249.) 17 Federal Rule of Civil Procedure 26(d)(1) states that “A party may not seek discovery 18 from any source before the parties have conferred as required by Rule 26(f), except . . . when 19 authorized by these rules, by stipulation, or by court order.” As previously noted, none of 20 the exceptions to the general rule apply. Rule 26(c)(1) permits parties or persons from whom 21 discovery is sought to “move for a protective order . . . to protect a party or person from 22 annoyance, embarrassment, oppression, or under burden or expense.” Pursuant to this rule, 23 Defendants DHI Title, Eva Espinoza, and Monique Maldonado have filed certification that 24 they have in good faith conferred with Plaintiff in an effort to have Plaintiff withdraw the 25 deposition notices. Nevertheless, Plaintiff has failed to do so. Therefore, the Motion for a 26 Protective Order is granted. 27 /// 28 /// -5- 1 CONCLUSION 2 Having considered the motions pending before the Court: 3 IT IS HEREBY ORDERED that the Motions for Summary Disposition of 4 Defendants DHI Title of Arizona and Eva Espinoza (Dkt. # 246) and Defendant HomeEq 5 (Dkt. # 251) are GRANTED. 6 IT IS FURTHER ORDERED that the Motions to Dismiss of Defendants Litton 7 Loan Servicing and U.S. Bank National Association1 (Dkt. # 189); Defendants HomEq 8 Servicing and Mortgage Electronic Registration Systems (Dkt. # 192); Defendant 9 Washington Mutual Bank (Dkt. # 211); Defendants DHI Title of Arizona and Eva Espinoza 10 (Dkt. # 214); Defendant Sterling Mortgage (Dkt. # 225), and Defendants GMAC Mortgage, 11 Homecomings Financial, and Executive Trustee Services (Dkt. # 215) are GRANTED. 12 IT IS FURTHER ORDERED that Defendants Litton Loan Servicing, U.S. Bank 13 National Association, HomEq Servicing, Mortgage Electronic Registration Systems, 14 Washington Mutual Bank, DHI Title of Arizona, Eva Espinoza, Sterling Mortgage, GMAC 15 Mortgage, Homecomings Financial, and Executive Trustee Services are DISMISSED 16 WITH PREJUDICE.2 17 18 19 20 21 22 23 24 25 26 27 28 1 In their Motion, in addition to seeking dismissal, Defendants Litton Loan Servicing and U.S. Bank National Association seek an order expunging the May 29, 2009 Notice of Lis Pendens filed by Plaintiff. (See Dkt. # 189 at 1, 17.) The request for an order expunging the May 29, 2009 Notice of Lis Pendens is denied without prejudice because, contrary to Defendants’ suggestion to the contrary, the litigation involving the property located at 18607 N. 45th Drive, Glendale, Arizona is still pending against Defendants Tony Smart, Argent Mortgage Company, and AMC Mortgage Services. Should Defendants have a legal basis authorizing this Court to presently grant their request, they are free to file a new motion setting forth the legal basis supporting their request. Otherwise, Defendants may reassert their request once the litigation has been terminated with respect to all relevant parties. Additionally, Defendants seek sanctions against Plaintiff pursuant to Federal Rule of Civil Procedure 11. (Id.) However, Defendants fail to set forth any argument in their motion as to how Plaintiff’s filings were presented for any improper purpose or otherwise violated Rule 11. Therefore, their request for sanctions is denied. 2 In their Joinder, in addition to seeking their own dismissal, Defendants GMAC Mortgage, Homecomings Financial Services, and Executive Trustee Services seek the -6- 1 2 IT IS FURTHER ORDERED that the Motion for a Protective Order of Defendants DHI Title of Arizona and Eva Espinoza (Dkt. # 249) is GRANTED. 3 IT IS FURTHER ORDERED that Plaintiff may not conduct discovery involving 4 Defendants Eva Espinoza and Monique Maldonado, including depositions scheduled for 5 August 26, 2009, until the parties have conferred as required by Rule 26(f) or otherwise 6 stipulate. 7 IT IS FURTHER ORDERED that Plaintiff show cause as to why she should not be 8 required to pay Defendant DHI Title of Arizona and Eva Espinoza’s reasonable expenses 9 incurred in making their motion for a protective order. Plaintiff shall file a memorandum 10 doing so before 5:00 P.M. on AUGUST 31, 2009. See Fed. R. Civ. P. 37(a)(5). 11 IT IS FURTHER ORDERED that Defendants DHI Title of Arizona and Eva 12 Espinoza shall otherwise comply with Local Rule 54(d) before 5:00 P.M. on AUGUST 31, 13 2009. 14 DATED this 19th day of August, 2009. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 dismissal of Lehman Brothers Holdings, Inc. (Dkt. # 215.) The Second Amended Complaint, however, does not name Lehman Brothers Holdings as a defendant. (See Dkt. # 181.) Therefore, the request is denied as moot. -7-
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