Abbott v. United Venture Capital, Inc.

• Decision Date: 22 May 1989
• Docket Number: CV-N-87-106-ECR.,No. CV-R-86-593-ECR,CV-R-86-593-ECR
• Citation: 718 F. Supp. 828
• Parties: George W. ABBOTT, Plaintiff, v. UNITED VENTURE CAPITAL, INC., a Nevada corporation, Inn Management, Inc., a Nevada corporation, Seth L. Atwood, Robert J. Angres, and Mark H. Gunderson, Defendants.
• Court: U.S. District Court — District of Nevada

718 F. Supp. 828

George W. ABBOTT, Plaintiff, v. UNITED VENTURE CAPITAL, INC., a Nevada corporation, Inn Management, Inc., a Nevada corporation, Seth L. Atwood, Robert J. Angres, and Mark H. Gunderson, Defendants.

Nos. CV-R-86-593-ECR, CV-N-87-106-ECR.

United States District Court, D. Nevada.

May 22, 1989.

Thomas M. Kelly, Minden, Nev., for plaintiff.

George W. Abbott, Minden, Nev., pro se.

Mark H. Gunderson, Reno, Nev., Kim Hagerty, Incline Village, Nev., and Pinkerton & Polaha, Reno, Nev., for defendants.

ORDER

EDWARD C. REED, Jr., Chief Judge.

STATEMENT OF THE CASE

The matter before the Court involves a lawsuit brought by George Abbott ("Abbott") against defendants United Venture Capital, Inc. ("UVC"), Inn Management, Inc. ("Inn"), Seth Atwood ("Atwood"), Robert Angres ("Angres"), and Mark Gunderson ("Gunderson") (hereinafter collectively referred to as "defendants"). This lawsuit is comprised of two separate complaints which this Court has consolidated into one action. See Minute Order entered April 27, 1989 (document # 66 in CV-R-86-593-ECR). The motions currently at issue relate solely to Abbott's second complaint, which originally was docketed as Case No. CV-N-87-106-ECR. In this complaint, Abbott charges defendants with malicious prosecution, abuse of process, intentional infliction of emotional distress, and civil conspiracy. In addition, Abbott seeks punitive damages from defendants under NRS § 42.010 on the theory that defendants acted with malice, fraudulent intent, and oppressive motives. See First Amended Complaint entered May 17, 1989 (document # 73 in CV-R-86-593-ECR) (hereinafter referred to as "Complaint").

Abbott's complaint is premised on the defendants' conduct in filing a separate and distinct lawsuit against Abbott in May of 1985. This lawsuit accused Abbott, who was and is an attorney, and many other individuals and corporations of, inter alia, fraud, conspiracy, and numerous violations of both federal securities laws and federal racketeering statutes. See United Venture Capital, Inc. v. Pordon, CV-R-85-278-BRT (D.Nev., complaint filed May 31, 1985). The origin of this lawsuit was a dispute between UVC and one of Abbott's clients, regarding the clients' procurement and use of several millions of dollars in loans from UVC.

Abbott's instant complaint is also based on the defendants' alleged conduct subsequent to the filing of their lawsuit against Abbott. First, Abbott alleges that Gunderson, acting as an attorney on behalf of UVC, Inn, Atwood, and Angres, sent a letter to a local newspaper announcing the suit against Abbott. This letter allegedly resulted in widespread publicity surrounding the accusations that defendants had made against Abbott. See Complaint at ¶¶ 10-12. Secondly, Abbott alleges that Angres filed a formal grievance against him with the Nevada State Bar. Id. at ¶ 18. Thirdly, Abbott accuses Gunderson of attempting to intimidate him by mailing him newspaper clippings regarding the stigma of defending against racketeering charges. Id. at ¶¶ 19-20. Finally, Abbott alleges that during the course of defendants' lawsuit against him, defendants repeatedly frustrated his legitimate attempts at discovery. See id. at ¶¶ 31-34.

On March 5, 1986, UVC voluntarily dismissed Abbott from its lawsuit pursuant to Fed.R.Civ.P. 41(a). This dismissal was without prejudice to renew the lawsuit. United Venture Capital, Inc. v. Pordon, CV-R-85-278-BRT (D.Nev. March 5, 1986) (document # 48). A little over two months later, the remainder of UVC's lawsuit was dismissed with prejudice. Id. (D.Nev. May 21, 1986) (document # 62).

In regard to the case at bar, defendants filed two motions to dismiss Abbott's instant complaint for failure to state a claim on which relief can be granted. Pursuant to this Court's order of June 29, 1987, these motions were submitted to the United States Magistrate for her consideration. On April 18, 1988, the Magistrate filed a Report and Recommendation in which she advised the denial of defendants' motions in their entirety. See Magistrate's Report and Recommendation entered April 18, 1988, CV-N-87-106-ECR (document # 35) (hereinafter referred to as "First R & R"). Defendants filed objections to the Magistrate's Report and Recommendation in accordance with United States District of Nevada Local Rule of Practice 510-2.

Prior to these objections being filed with the Court, however, defendants filed a motion for summary judgment. Their summary judgment motion contained largely the same legal arguments as their motions to dismiss, but was supplemented by the deposition testimony of Abbott. The Magistrate reviewed this summary judgment motion and recommended its denial for essentially the same reasons as she recommended the denial of defendants' motions to dismiss. See Magistrate's Report and Recommendation entered November 10, 1988, CV-N-87-106-ECR (document # 56) (hereinafter referred to as "Second R & R"). Defendants once again have filed timely objections to the Magistrate's Report and Recommendation.

Defendants' objections to the Magistrate's Second R & R are highly duplicative of their objections to her First R & R. Indeed, their second set of objections contains all of the legal arguments presented in their first set of objections. Their second set of objections also adds a few additional arguments that specifically are addressed to the nature of summary judgment motions. In light of the manner in which defendants' second set of objections completely incorporates their first set of objections, this Court shall focus its attention on their second set of objections. In essence, therefore, this Court shall merge defendants' motions to dismiss and their motion for summary judgment and shall treat all their motions as a single motion for summary judgment. Cf. Fed.R.Civ.P. 12(b) (where motion to dismiss includes matters outside the pleadings, court may treat motion as one for summary judgment).

Defendants' second set of objections are now ripe for review by this Court. Accordingly, we shall undertake a de novo review of these objections and shall also review defendants' underlying motion for summary judgment. See 28 U.S.C. § 636(b)(1); United States District of Nevada Local Rule of Practice 510-2.

APPLICABLE LEGAL STANDARDS

As a preliminary matter, defendants contend that the Magistrate applied incorrect legal standards in recommending the denial of their motion for summary judgment. First, they argue that Abbott's failure to cite any statutory or case authority in his opposition to their motion for summary judgment constitutes consent by Abbott to the granting of their motion. As support for this argument, they point to United States District of Nevada Local Rule of Practice 140-6. Secondly, defendants maintain that since Abbott did not include any affidavits or other evidence in his opposition, their summary judgment motion should be granted pursuant to Fed.R.Civ.P. 56(e).

Defendants are wrong in both respects. United States District of Nevada Local Rule of Practice 140-6 only applies where a party has not filed any memorandum of points and authorities in opposition to a motion. This rule does not require parties to include certain types of authority in their oppositions. Since Abbott did indeed file an opposition to defendants' motion for summary judgment, Local Rule of Practice 140-6 has no bearing on the matter. Moreover, this Court finds that due to the great similarity between defendants' summary judgment motion and their prior motions to dismiss, Abbott acted properly in basing his summary judgment opposition on his previously filed opposition to the motions to dismiss.

Defendants also are incorrect in asserting that their motion for summary judgment must be granted merely because Abbott did not present any evidence in his opposition to this motion. In a summary judgment motion, the moving party has the initial burden of establishing that there is no genuine issue of material fact. Only once this burden is met does the burden shift to the opposing party to set forth specific evidence of a genuine and material issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

Thus, in the instant case, defendants have the burden of establishing that no issue of material fact exists and that they are "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Defendants will not have met this burden if the evidence they presented discloses a material issue of fact. Under such circumstances, summary judgment would be inappropriate because "there would be sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Consequently, Abbott's complaint may well survive defendants' summary judgment motion despite Abbott's failure to present any evidence in opposition.

APPLICABLE BODY OF LAW

Abbott's instant lawsuit is before this Court on the basis of diversity jurisdiction. See Order entered November 9, 1989 (document # 57 in CV-N-87-106-ECR). In diversity cases, federal courts must apply the substantive law of the forum state. Kabatoff v. Safeco Ins. Co. of America, 627 F.2d 207, 209 (9th Cir.1980); King v. Penrod Drilling Co., 652 F.Supp. 1331, 1333 (D.Nev.1987). In the instant case, Nevada is the forum state because all of the defendants' allegedly tortious conduct occurred in Nevada.

In applying Nevada's substantive law, "the task of this Court is to approximate state law as closely as possible." Truck Ins. Exchange v. Tetzlaff, 683 F.Supp. 223, 227 (D.Nev.1988) (citing Gee v. Tenneco, Inc., 615 F.2d 857, 861 (9th Cir. 1980)). If Nevada's highest court has not decided a particular issue, "this Court must predict how the state high court would resolve it." Id. (citing Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir. 1986), modified, 810 F.2d 1517 (...