Carl L. Jimena v. Clive Standish, et al, No. 1:2007cv00367 - Document 214 (E.D. Cal. 2010)
Court Description: MEMORANDUM DECISION AND ORDER DENYING Plaintiff's Motion to Enter Default Against UBS AG and UBS FS 170 , signed by Judge Oliver W. Wanger on 6/9/2010. (Gaumnitz, R)
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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT FOR THE 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CARL L. JIMENA, 10 Plaintiff, 11 12 vs. 13 UBS AG BANK, et al., 14 15 16 17 18 19 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-F-07-367 OWW/SKO MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S MOTION TO ENTER DEFAULT AGAINST UBS AG AND UBS FS (Doc. 170) Plaintiff Carl L. Jimena, proceeding in pro per, has filed a motion to enter default against Defendants UBS AG and UBS FS. As to UBS FS, Plaintiff asserts that he considers UBS FS 20 still a pary [sic] to this case as a temporary nominal party, 21 since the Court stated that if after discovery, UBS FS is 22 justified to be an alter ego, agent or liable under fraud theory, 23 the complaint would then be amended. 24 the Court if it agrees that UBS FS is a temporary nominal party 25 in this case until after discovery but if not, Plaintiff 26 request [sic] that the parties be informed of the current status 1 Plaintiff inquires from 1 2 of UBS FS. The Court is unaware of any authority providing for a 3 temporary nominal party in federal court. 4 party to this action, see Memorandum Decision and Order Denying 5 in Part and Granting in Part Plaintiff s Amended Motion to Admit 6 Third Amended Complaint, Striking Allegations Against UBS FS, and 7 Directing Clerk of Court to file Third Amended Complaint filed 8 on October 6, 2009 (Doc. 155; October 6, 2009 Memorandum ). 9 default cannot be entered against a non-party. 10 UBS FS is not a A At the hearing, Plaintiff asserted that UBS AG s Answer to 11 the Third Amended Complaint establishes that UBS FS cannot be 12 dismissed from this action because UBS AG s Answer changes the 13 status of UBS FS. 14 parent company of the three listed branches, as none of the 15 branches are subsidiaries of UBS AG or corporations of any kind, 16 but rather branch offices maintained by UBS AG or UBS Financial 17 Services Inc. ( UBS FS ). 18 admitted that UBS FS is a subsidiary of UBS AG, Plaintiff 19 contended that UBS FS is a proper party to this action. 20 contention was raised for the first time at the hearing. 21 Arguments raised for the first time in a reply brief or at the 22 hearing on a motion are disregarded as a general rule. 23 United States v. Bohn, 956 F.2d 208, 209 (9th Cir.1992); United 24 States v. Boyce, 148 F.Supp.2d 1069, 1085 (S.D.Cal.2001). 25 event, Plaintiff s belated contention does not mandate entry of 26 default against UBS FS pursuant to Plaintiff s motion. UBS AG s Answer denies that UBS AG is the Because UBS AG had previously 2 This See In any UBS FS 1 has been dismissed from this case. 2 as a defendant in this action by Court order upon motion and 3 fails to timely respond will a request for entry of default 4 against UBS FS be entertained. 5 6 7 Only if UBS FS is reinstated Plaintiff s motion to enter default against UBS FS is DENIED. As to UBS AG, Plaintiff asserts that he filed the Third 8 Amended Complaint on June 19, 2009. (Doc. 141). However, 9 Plaintiff also filed on June 19, 2009 a motion to admit the 10 Third Amended Complaint. 11 Complaint was not filed but lodged on the docket. 12 filed on June 19, 2009, Plaintiff was ordered to file a notice of 13 motion regarding his motion to admit the Third Amended Complaint, 14 setting the motion for hearing on the Court s civil motion 15 calendar as required by Rule 78-230(b), Local Rules of Practice 16 (now Rule 230, Local Rules of Practice). 17 filed the notice of motion on June 23, 2009, setting the motion 18 to admit the Third Amended Complaint for hearing on July 22, 19 2009. 20 hearing on Plaintiff s motion was continued to September 28, 21 2009. 22 motion on September 11, 2009. 23 on September 28, 2009. 24 Memorandum was filed, (Doc. 154), directing the Clerk of the 25 Court to file the proposed Third Amended Complaint, after 26 striking the allegations in the proposed Third Amended Complaint (Doc. 145). (Doc. 147). Consequently, the Third Amended (Doc. 142). By Order Plaintiff By minute order filed on June 26, 2009, the UBS AG timely filed an opposition to the (Doc. 150). (Doc. 153). 3 The motion was heard The October 6, 2009 1 as to the alter ego, fraud and agency liability of UBS FS for the 2 alleged actions of UBS AG. 3 2009 Memorandum was filed on October 15, 2009 and the Third 4 Amended Complaint was filed on October 15, 2009. 5 160). 6 October 27, 2009. The Order regarding the October 6, (Docs. 159 & UBS AG filed an Answer to the Third Amended Complaint on (Doc. 166). 7 In seeking a default against UBS AG, Plaintiff relies on 8 Rule 15(a)(3), Federal Rules of Civil Procedure, as in effect 9 before its amendment on December 1, 2009:1 Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 10 days after service of the amended pleading, whichever is later. 10 11 12 13 Plaintiff argues that the filing by UBS AG of its opposition to 14 Plaintiff s motion to admit the Third Amended Complaint does not 15 toll the ten-day period set forth in Rule 15(a)(3). Plaintiff 16 relies on General Mills, Inc. v. Kraft Foods Global, Inc., 495 17 F.3d 1378 (Fed.Cir.2007).2 18 In General Mills, General Mills brought an action against 19 Kraft alleging infringement of its patent relating to rolled food 20 products. Kraft filed an answer and counterclaim, alleging that 21 General Mills breached a settlement agreement by bringing suit. 22 General Mills replied to Kraft s counterclaim and Kraft moved for 23 24 1 25 26 Effective December 1, 2009, Rule 15(a)(3) sets forth a 14-day period to respond to an amended pleading. 2 Plaintiff s citation to this case is 2006-1569, - 1606, decided: July 31, 2007. 4 1 summary judgment. General Mills then filed an amended complaint 2 in which it reasserted the patent infringement claim from the 3 original complaint and asserted a new breach of contract claim on 4 the ground that Kraft breached the settlement agreement. 5 moved to dismiss both counts of the amended complaint. 6 never answered the amended complaint or reasserted its 7 counterclaim. 8 dismiss and dismissed General Mills patent infringement claim. 9 Exercising its discretion under 28 U.S.C. § 1367(c)(3), the 10 district court then declined to exercise jurisdiction over 11 General Mills state-law contract claim and entered judgment for 12 Kraft. 13 to the district court as to how to proceed with its counterclaim. 14 The district court treated Kraft s letter as a motion to alter or 15 amend the judgment and denied the deemed motion, ruling that 16 because Kraft did not reassert its counterclaim in response to 17 the amended complaint, no counterclaim was pending when the 18 district court entered judgment. 19 Foods Global, Inc., 487 F.3d 1368 (Fed.Cir.2007), the Federal 20 Circuit addressed Kraft s contention that its counterclaim 21 remained extant at least until the deadline for filing the 22 amended answer, and that deadline had not yet passed when the 23 district court entered judgment. 24 timely filing of a motion to dismiss under Rule 12(b)(6), Federal 25 Rules of Civil Procedure, tolled the deadline for filing a 26 responsive pleading until 10 days after the motion was ruled Kraft Kraft The district court granted Kraft s motion to After entry of judgment, Kraft sought guidance by letter In General Mills, Inc. v. Kraft Kraft argued that Kraft s 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 upon. 487 F.3d at 1376. The Federal Circuit ruled: The relevant tolling provision is found in Fed.R.Civ.P. 12(a)(4)(A). Although neither party cites authority that construes Rule 12(a)(4)(A) - and we have found none ourselves - by the terms of that rule, the filing of a motion to dismiss does not extend the time for filing an answer to an amended complaint, at least in the circumstances here where the time for responding to the original complaint has already run. Rule 12(a)(1)-(3) sets forth the deadlines for answering original complaints and cross-claims under various circumstances. Rule 12(a)(4) then provides that [u]nless a different time is fixed by court order, the service of a motion permitted under this rule [including a Rule 12(b)(6) motion to dismiss] alters these periods of time so as to extend the deadline until a motion is ruled upon ... However, the time for answering an amended complaint is not one of these periods of time. Rather, the deadline for responding to an amended complaint is established separately under Rule 15: A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders. .... Thus, because no time remain[ed] for response to the original pleading when General Mills filed its amended complaint, Kraft had only 10 days after service of the amended complaint - not 10 days after the district court s ruling on the motion to dismiss - to file an answer and counterclaim or take such other action as may have been permitted to protect its interests. Because Kraft did not do so before its deadline had passed, the district court did not abuse its discretion in finding that Kraft had abandoned its counterclaim. 487 F.3d at 1376-1377. In the opinion relied upon by Plaintiff here, the Federal Circuit clarified its ruling: 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Kraft argues in its petition for rehearing that our decision undermines the clearly expressed intent of Rule 12 - to permit certain defenses, including failure to state a claim upon which relief can be granted, to be raised by motion instead of in a responsive pleading. However, [t]he Federal Rules should be given their plain meaning. Walker v. Armco Steel Corp., 446 U.S. 740, 750 n.9 ... (1978). Here, where the meaning of Rule 12 is unambiguous, we decline to ignore the text of the rule in service of a purported purpose. As we previously explained, Rule 12(a)(4) by its express terms only alters these periods of time. ..., where these periods can only refer to the periods of time enumerated immediately before, in Rule 12(a)(1)-(3): 20 days after service of a summons and complaint (Rule 12(a)(1)(A)); 60 or 90 days after a request for waiver of process is sent (Rule 12(a)(1)(B)); 20 days after service of a cross-claim or counterclaim (Rule 12(a)(2)); and 60 days after service of a pleading on the United States or its agencies, officers, or employees (Rule 12(a)(3)). The period of time to answer an amended complaint is not only missing from this list of affected periods, but it is, in the relevant circumstances, of a different length: 10 days after service of the amended pleading. See Fed.R.Civ.P. 15(a). The language of the rule is unambiguous: Rule 12(a)(4) does not extend the time for filing an answer to an amended complaint when the time remaining for response to the original pleading has elapsed .... 20 21 22 23 24 25 26 Our holding is narrower that Kraft s petition suggests. We did not and do not hold that the tolling provision of Rule 12(a)(4)(A) never applies to responses to amended pleadings. This is because Rule 15(a), which sets the deadline for answering an amended pleading, has two prongs: A party shall plead in response to an amended pleading [(1)] within the time remaining for response to an amended pleading or [(2)] within 10 days after service of the amended pleading, whichever period may be longer. ... 7 1 2 3 4 5 6 7 8 Ordinarily, the time remaining for response to the original pleading will be defined by one of the periods of time enumerated in Rule 12(a) and tolled by Rule 12(a)(4)(A). Thus, when there is time remaining for response to the original pleading - for example, when a plaintiff amends her complaint as a matter of right before serving the defendant or before the defendant answers - the first prong of Rule 15(a) (which refers to a deadline that is tolled by Rule 12(a)(4)(A)) becomes the longer of the two prongs, and the extended deadline of Rule 12(a)(4) controls. 495 F.3d at 1379. 9 Relying on this Federal Circuit authority, Plaintiff 10 contends that UBS AG should have filed its Answer to the Third 11 Amended Complaint within 10 days from June 16, 2009, when UBS AG 12 was served with the Third Amended Complaint and that UBS AG s 13 failure to do so results in its default. 14 However, Plaintiff s motion to admit the Third Amended 15 Complaint prayed that the attached Third Amended Complaint be 16 admitted on record upon receipt hereof. 17 the Third Amended Complaint, Plaintiff contended that he was in 18 full compliance with the Orders of the Court. 19 contends, the Third Amended Complaint was not then an operative 20 pleading because the Court had not yet granted leave to Plaintiff 21 to file it. 22 file the Third Amended Complaint on October 15, 2009, the ten-day 23 clock started to run and UBS AG s Answer was filed within that 24 ten-day period, excluding intervening Saturdays and Sundays 25 pursuant to Rule 6, Federal Rules of Civil Procedure. 26 In his motion to admit As UBS AG When the Court directed the Clerk of the Court to Plaintiff replies that the Clerk of the Court did not comply 8 1 with Plaintiff s request in the motion to admit the Third Amended 2 Complaint that the attached Third Amended Complaint be admitted 3 on the record, but rather lodged the Third Amended Complaint. 4 Plaintiff asserts that the lodging of the Third Amended Complaint 5 by the Clerk was not in compliance with Local Rule 78-230(b), 6 Local Rules of Practice (now Rule 230(b)): 7 8 9 10 Motions defectively noticed shall be filed, but not set for hearing; the Clerk shall immediately notify the moving party of the defective notice and of the next available dates and times for proper notice, and the moving party shall file and serve a new notice of motion setting forth the proper time and date. 11 Plaintiff asserts that, pursuant to this local rule, the Clerk 12 has a duty to file the Third Amended Complaint, not merely 13 lodged it and, therefore, the Third Amended Complaint was 14 operative as of June 15, 2009. 15 Plaintiff s position is without merit. By Court Order, 16 following the Local Rule, Plaintiff was advised that the motion 17 to admit the Third Amended Complaint was defectively noticed and 18 ordered to file a notice of motion setting it for hearing. 19 Because the motion prayed that the Third Amended Complaint be 20 admitted, the Clerk could only lodge the proposed Third Amended 21 Complaint pending a ruling by the Court on Plaintiff s motion. 22 Plaintiff further argues that he served a copy of the Third 23 Amended Complaint on UBS AG on June 15, 2007, referring to 24 Exhibit 1 to his motion for default. Exhibit 1 is a certified 25 receipt that Plaintiff mailed the motion to admit 3rd Amended 26 9 1 Complaint with it attached to UBS AG on June 15, 2009. 2 until leave to admit the Third Amended Complaint was ordered by 3 the Court, the Third Amended Complaint was not served. 4 5 6 7 8 9 However, Furthermore, entry of default is governed by Rule 55, Federal Rules of Civil Procedure. Rule 55(a) provides: When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party s default. The fact that Rule 55(a) gives the clerk authority to enter a 10 default is not a limitation on the power of the court to do so. 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 12 2682, p. 19. 13 entry of default against UBS AG, entry of default judgment 14 against UBS AG is governed by Rule 55(b)(2). 15 aside an entry of default for good cause, Rule 55(c), and has 16 discretion to decline to enter a default judgment. 17 Miller & Kane, id., § 2693. 18 positions, continued refusal to timely comply with Court Orders, 19 failure to comply with the Federal Rules of Civil Procedure and 20 the Local Rules of Practice, and taking appeals from non- 21 appealable orders caused or contributed to the present prolix 22 procedural posture of this action. 23 continues to delay the progress of this case. 24 default judgments are viewed with disfavor and UBS AG has 25 consistently opposed Plaintiff in this litigation. 26 Even if Plaintiff had established he is entitled to The Court may set Wright, Here, Plaintiff s inconsistent CONCLUSION 10 Plaintiff s erratic conduct Defaults and For the reasons stated, Plaintiff s motion to enter default 1 2 against UBS AG and UBS FS is DENIED. IT IS SO ORDERED. 3 4 Dated: 668554 June 9, 2010 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 11
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