Schmidt v. United States

• Decision Date: 01 October 2013
• Docket Number: No. No. 2:09-cv-0660 LKK GGH PS,No. 2:09-cv-0660 LKK GGH PS
• Parties: LONNIE G. SCHMIDT, et al. Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — Eastern District of California

LONNIE G. SCHMIDT, et al. Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

No. No. 2:09-cv-0660 LKK GGH PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: October 1, 2013

ORDER AND

FINDINGS AND RECOMMENDATIONS

Previously pending on this court's law and motion calendar for August 1, 2013, were the parties' cross-motions for summary judgment, filed April 25, 2013 by defendant and June 6, 2013 by plaintiffs. The United States was represented by Earline Gordon. Plaintiffs appeared in pro se. Having heard oral argument and reviewed the papers in support of and in opposition to the motions, the court now issues the following findings and recommendations.

PROCEDURAL BACKGROUND

The initiation of the saga leading to this action involved the filing of lawsuits by the Securities and Exchange Commission (SEC) in federal court in Texas against individuals not plaintiffs herein. Apparently, however, some of the plaintiffs herein were in possession of assets subject to seizure by a court appointed receiver. A lengthy history of conduct contemptuous of the Texas federal court by Lonnie and Daniel Schmidt ensued, resulting in civil contempt arrest orders being issued, and the actual incarceration of Lonnie Schmidt for a substantial period oftime. It also appears that plaintiff Daniel Schmidt was a longtime fugitive on an outstanding arrest order issued by the Texas federal judge. The receiver appointed in the Texas actions sought to seize assets of the plaintiffs in order to comply with his appointing authority orders. The remaining plaintiffs allege that they were "victims" of the enforcement of the federal court orders and the appointed receiver's orders.

A lengthy findings and recommendations setting forth the procedural history of this case was issued on May 20, 2011. (ECF No. 63.) Numerous claims were dismissed at that time, and as a result many of the parties were eliminated from the action. Further findings and recommendations were issued on January 27, 2012, which disposed of Claim III and certain state defendants. (ECF No. 70.) Both findings and recommendations were adopted by the district court. (ECF Nos. 65, 71.)

The sole remaining claim at this stage of the litigation is Claim I, which is a Federal Tort Claims Act (FTCA) claim for "malicious prosecution; malicious abuse of legal process; abuse of process; assault; battery; false arrest; false imprisonment; kidnapping; grand theft; denial of counsel; denial of speedy trial; interference with civil rights; intentional infliction of emotional distress; and common law conspiracy." (Compl., ¶ 74.) The actions underlying the alleged torts were those of federal law enforcement officials who effectuated the Texas court arrest order. The United States is the sole remaining defendant, and the only plaintiffs remaining are Lonnie Schmidt, but only for California activities postdating July 10, 2005; and Don and Deborah Manzer, and Eddie and Donna Maria, but only for events in California occurring July 7, 2005 or later.

DISCUSSION¹

I. Legal Standard

The "purpose of summary judgment is to pierce the pleadings and to assess the proof inorder to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate when it is demonstrated that there exists "no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Under summary judgment practice, the moving party

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita, 475 U.S. at 585-86. In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Matsushita, 475 U.S. at 586. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Anderson, 477 U.S. at 248.

In the endeavor to establish the existence of a factual dispute, the non-moving 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., 809 F.2d at 630. The evidence of the non-moving party is to be believed and all justifiable inferences are to be drawn in its favor. See Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).To demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 586-87 (internal citation and quotation omitted).

II. Claims Remaining

The court must once again struggle with describing the claims which remain for analysis herein. The entire action has suffered from "kitchen sink" syndrome where plaintiffs have thrown into their prolix complaint nearly every type of claim known to the law whether or not justified.

As previously set forth, the only claim remaining, after the findings and recommendations were adopted, is Claim I brought under the FTCA. It is limited to events taking place in California only, and for plaintiff Lonnie Schmidt, it is limited to events postdating July 10, 2005. For plaintiffs Don and Deborah Manzer, and Eddie and Donna Maria, it is confined to events taking place on July 7, 2005 or later. The only defendant remaining is the United States, based on alleged activities of former U.S. Marshal Amador and Deputy Ashton.

The various bases for the FTCA claim which are going forward, and will be analyzed in this opinion, include:²

Abuse of Process³ - all remaining plaintiffs (Compl. ¶ 102)

Assault and Battery - all remaining plaintiffs (Compl. ¶ 74)

False Arrest and false imprisonment - Edward Maria, Donna Maria (Compl. ¶¶ 98-100)

Grand Theft - all remaining plaintiffs (seizure of property pursuant to court order of receivership) (Compl. ¶ 74)

Denial of Counsel and denial of speedy trial - Lonnie Schmidt (events from 7/10/05-12/19/05) against all defendants (Compl. ¶¶ 108-118) Intentional Infliction of Emotional Distress - all remaining plaintiffs (Compl. ¶ 74, 142-44) Common law conspiracy - all remaining plaintiffs (to wrongfully arrest and imprison L. Schmidt and other plaintiffs and seize their property) (Compl. ¶¶ 74, 87)

Interference with Civil Rights - all remaining plaintiffs (Compl. ¶ 74)

Other claims which were not set forth under the FTCA claim, but were described as separate claims in the complaint, were previously dismissed and found to be potentially subject only to the FTCA insofar as they encompassed state law tort claims. (Doc. No. 63 at 16.) They were unlawful search and seizure (California constitutional claims only), trespass to assault and battery (California constitutional claims only), interference with contractual relations, libel and slander, deprivation of due process (California constitutional claims only), nuisance, negligent infliction of emotional distress, conversion, and constructive trust. However, since these claims were not specifically enumerated under Count I of the complaint, the FTCA claim, and because the claims are either repetitive of those in Claim 1 or otherwise defective,⁴ they will not be addressed here. Plaintiffs are masters of their complaint and repeated, or did not enumerate, these separately stated torts under the FTCA claim. Given the prolixity of the complaint as a whole, the undersigned will not add to the already multi-faceted FTCA claim.

III. Defendant's Motion for Summary Judgment

A. Defendant's Request for Judicial Notice

Defendant has filed a request for judicial notice of pleadings and orders filed in other courts. Plaintiffs have not opposed the request. Defendant's request for judicial notice is granted pursuant to Fed. R. Evid. 201, as it does not require the acceptance of facts "subject to reasonable dispute" and is capable of immediate and accurate determination by resort to a source whose accuracy cannot reasonably be questioned. See In re Tyrone F. Conner Corp., Inc., 140 B.R. 771, 781-82 (E.D. Cal. 1992); Fed. R. Evid. 201(b); Cal. ex. rel. RoNo, L.L.C. v. Altus Fin. S.A., 344 F.3d 920, 931 n. 8 (9th Cir. 2003). The court also takes notice of its own records in this action.United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (a court may take judicial notice of its own records).

B. Compliance with Federal Tort Claims Act Requirements

The claims to be addressed here from Count 1 fall under the FTCA, which is the exclusive remedy for various...