Davis v. Living Trust of Michael J. Fitzgerald

• Decision Date: 08 July 2013
• Docket Number: 2:12-CV-1939 JCM (NJK)
• Parties: STEVE DAVIS, Plaintiff(s), v. THE LIVING TRUST OF MICHAEL J. FITZGERALD, HENRY W. RANSPOT, Defendant(s).
• Court: U.S. District Court — District of Nevada

STEVE DAVIS, Plaintiff(s),

v.THE LIVING TRUST OF MICHAEL J. FITZGERALD, HENRY W. RANSPOT, Defendant(s).

2:12-CV-1939 JCM (NJK)

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

DATED July 8, 2013

ORDER

Presently before the court is defendant Henry Ranspot's ("Ranspot") motion for final judgment. (Doc. # 28). Pro se plaintiff Steve Davis responded. (Doc. # 30).

Also before the court is court is defendant The Living Trust of Michael J. Fitzgerald's ("Fitzgerald trust") motion for summary judgment. (Doc. # 16).¹ Defendant Fitzgerald trust filed a notice of non-opposition (doc. # 31), plaintiff responded (doc. # 34).

Also pending before the court is defendant Fitzgerald trust's motion for a finding of vexatious litigant and entry of vexatious litigant pre-filing order. (Doc. # 33).² Plaintiff filed a response (doc. # 43), and defendant Fitzgerald trust filed a reply (doc. # 45).

I. Factual & Procedural Background

In the instant matter, plaintiff sued the Fitzgerald trust and Ranspot in state court for the alleged inappropriate diversion of royalty payments from a wide array of mineral mining operations across the western United States. Plaintiff alleges that he entered into a joint venture with Michael J. Fitzgerald and Clyde Davis in March 1969, based on mineral exploration. Plaintiff further alleges that he was to receive royalties under a confidentiality agreement also entered into in March 1969.

In August 2012, plaintiff filed the instant complaint based on the alleged violation of the confidentiality agreement and failure to pay plaintiff royalties. Specifically, plaintiff alleges: (1) breach of fiduciary duty; (2) constructive fraud; (3) unjust enrichment; (4) accounting; (5) tracing; (6) constructive trust; and (7) attorney's fees. (Doc. # 1, Ex. A).

Previously, in March 2011, plaintiff filed a creditor's claim against the Fitzgerald estate alleging essentially the same facts and claims in Washington state court ("Washington action"). (Doc. # 17, Ex. 1). In April 2011, the Washington state court ruled that plaintiff's creditor's claim was timed barred. (Id., Ex. 2). Then, in November 2011, plaintiff filed a complaint against the Fitzgerald trust and Marisa Luisa De La Vega, the widow and trustee of the Fitzgerald trust, alleging the same basic claims and contentions contained in the Washington action in Arizona state court ("Arizona action"). (Id., Ex. 10). In September 2012, the Arizona state court dismissed the action with prejudice as being time barred. (Id., Ex. 13).

Defendants Fitzgerald trust and Ranspot timely removed the instant matter to this court. (See docs. #1 & 5). Defendant Ranspot moves this court for a judgment in his favor. Defendant Fitzgerald trust moves this court to enter summary judgment in its favor based on the doctrines of claim and issue preclusion and moves for a finding of a vexatious litigant as to plaintiff. The court now addresses the pending motions before the court.

II. Motion for Judgment (doc. # 28)

Defendant Ranspot seeks final judgment in his favor pursuant Fed. R. Civ. P. 54(b). While this court already granted defendant Ranspot's motion to dismiss (see doc. # 13), it appears that judgment has not yet been entered in favor of Ranspot.

Defendant Ranspot specifically seeks this order because plaintiff has continued to litigate against Ranspot by seeking default against him even after Ranspot had been terminated from this action. (See doc. # 20). Because this court has already dismissed plaintiff's complaint as against Ranspot (see doc. # 13), the court finds good cause to grant this motion.

III. Motion for Summary Judgment (doc. # 16)

A. Legal Standard

A court cannot grant a summary judgment motion merely because it is unopposed, even where its local rules might permit it. Henry v. Gill Indus., Inc., 983 F.2d 943, 949-50 (9th Cir. 1993); see also Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003) (a district court cannot grant a motion for summary judgment based merely on the fact that the opposing party failed to file an opposition). Even without an opposition, the court must apply standards consistent with Fed. R. Civ. P. 56, determining if the moving party's motion demonstrates that there is no genuine issue of material fact and judgment is appropriate as a matter of law. Id. at 950; see also Clarendon Am. Ins. Co. v. Jai Thai Enterprises, LLC, 625 F. Supp. 2d 1099, 1103 (W.D. Wash. 2009).³

The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that "there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(a). A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

In determining summary judgment, a court applies a burden-shifting analysis. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213F.3d 474, 480 (9th Cir. 2000) (citations omitted).

In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987).

B. Discussion⁴

There are two final judgments-in Washington state court and Arizona state court-against plaintiff dismissing his claims as being time barred.⁵ The Fitzgerald trust argues that because plaintiff has repeatedly sued defendant over the same issue, this court should enter an order barring plaintiff's claims. The court addresses claim and issue preclusion in turn.

. . . First, the court acknowledges that resolution of claim and issue preclusion are appropriate at the summary judgment stage under Nevada law. See LaForge v. State, University and Community College System of Nevada, 997 P.2d 130, 133 (Nev. 2000). Second, the court acknowledges that "[t]o determine whether a state court decision precludes a party from litigating a claim or issue in federal court, the federal court must apply the res judicata rules of the state court wherein the prior judgment was rendered." Taylor v. Merscorp, Inc., 2:11-CV-01516-GMN, 2012 WL 4361026, at *3 (D. Nev. Sept. 21, 2012) (citing Manufactured Home Communities, Inc. v. City of San Jose, 420 F.3d 1022, 1031 (9th Cir. 2005); Pedrina v. Chun, 906 F.Supp. 1377, 1399 (D.Haw.1995), aff'd 97 F.3d 1296 (9th Cir. 1996)).

1. Claim Preclusion⁶

"The doctrine of res judicata provides that a final judgment on the merits bars further claims by parties or their privies based on the same cause of action." Tahoe-Sierra Pres. Counsel, Inc. v. Tahoe Reg'l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003) (internal citations and quotations omitted). "A final judgment on the merits of an action precludes the parties or their privies form relitigating issues that were or could have been raised in that action." Federated Dep't Stores, Inc. v. Moitie, 453 U.S. 394, 398 (1981). "The doctrine of res judicata is meant to protect parties against being harassed by repetitive actions." Bell v. United States, no. CV F 02-5077, 2002 WL 1987395, at *4 (E.D. Cal. June 28, 2002).

"It is now settled that a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered." Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984) (discussing res judicata and collateral estoppel under the Constitution's full faith and credit clause and the parallelfederal statute-28 U.S.C. § 1738).

The Nevada Supreme Court has established the following three-part test for determining whether claim preclusion should apply: "(1) the parties or their privies are the same; (2) the final judgment is valid; and (3) the subsequent action is based on the same claims or any part of them that were or could have been brought in the first case." Five Star Capital Corp. v. Ruby, 194 P.3d 709, 713 (Nev. 2008); see also Tahoe-Sierra, 322 F.3d at 1077 (identifying the same three-part test).

When considering the first factor a court should note that "even when parties are not identical, privity may exist if there is a substantial identity between parties, that is, when there is sufficient commonality of interest." Id. at 1082. "Privity-for the purposes of applying the doctrine of res judicata-is a legal conclusion designating a person so identified in interest with a party to former...