(PS) Gerber v. Citigroup Inc., et al, No. 2:2007cv00785 - Document 157 (E.D. Cal. 2009)
Court Description: ORDER signed by Judge Frank C. Damrell, Jr on 7/13/09: The findings and recommendations filed January 29, 2009, are adopted in full 143 . The March 31, 2008 motion to dismiss is granted in part and denied in part 107 . Defendants' March 31, 2 008 motion to dismiss for failure to state a claim is denied 109 . Plaintiff's May 1, 2008 motion to strike matters in the answer and affirmative defenses is denied 115 . Plaintiffs May 1, 2008 motion to dismiss Citibank's counter claim is denied 115 . (Kaminski, H)
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(PS) Gerber v. Citigroup Inc., et al Doc. 157 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 JOSEPH E. GERBER, an individual, 9 Plaintiff, 10 11 12 13 vs. CITIGROUP, INC., etc., et al., Defendants. 16 17 ORDER / 14 15 No. 07-cv-0785 FCD JFM PS Plaintiff, proceeding pro se, filed the above-entitled action. The matter was referred to a United States Magistrate Judge pursuant to Local Rule 72-302(c)(21). On January 29, 2009, the magistrate judge filed findings and recommendations 18 herein which were served on all parties and which contained notice to all parties that any 19 objections to the findings and recommendations were to be filed within ten days. Plaintiff and 20 defendants have filed objections to the findings and recommendations. 21 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72- 22 304, this court has conducted a de novo review of this case. Having carefully reviewed the 23 entire file, the court finds the findings and recommendations to be supported by the record and 24 by proper analysis. 25 Accordingly, IT IS HEREBY ORDERED that: 26 1. The findings and recommendations filed January 29, 2009, are adopted in full; 1 Dockets.Justia.com 1 and 2. The March 31, 2008 motion to dismiss (#107) is granted in part and denied in 2 3 part, as follows: a. Because defendants are not protected under the Noerr-Pennington 4 5 doctrine or California’s litigation privilege, defendants’ motion to dismiss or strike claims two, 6 seven, and seventeen on these grounds is denied. b. Defendants’ motion to dismiss Rosenthal claims brought against 7 8 defendants Zide, Schwachman and Lee, who are individual attorneys, is granted. c. Defendants’ request for Rule 11 sanctions is denied. 9 d. Claims fifteen and sixteen are dismissed without prejudice to plaintiff’s 10 11 claim for actual damages for emotional distress under the FDCPA. 12 e. Defendants’ motion to dismiss claim seventeen is granted. 13 f. Defendants’ motion to dismiss based on violation of the statute of 14 limitations should is denied without prejudice. g. Defendants’ motion pursuant to California Code of Civil Procedure 15 16 Section 425.16–the anti-SLAPP Statute–is denied. h. Defendants’ motion to dismiss based on plaintiff’s failure to obtain a 17 18 pre-filing court order required by California Civil Code § 1714.10 to allege conspiracy is denied. 3. Defendants’ March 31, 2008 motion to dismiss for failure to state a claim 19 20 (#109) is denied. 4. Plaintiff’s May 1, 2008 motion to strike matters in the answer and affirmative 21 22 defenses (#115) is denied. 23 ///// 24 ///// 25 ///// 26 2 5. Plaintiff’s May 1, 2008 motion to dismiss Citibank’s counter claim (#115) is 1 2 denied. 3 DATED: July 13, 2009. 4 5 _______________________________________ FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3
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