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GUTIERREZ v. GIVENS

January 16, 1998

CELIA GUTIERREZ, ABNER McKENZIE, DAVID CHENOT, and PEGGY BAKER, On Behalf of Themselves and All Others Similarly Situated, Plaintiffs,
v.
CHARLES J. GIVENS, Jr., et al., Defendants.



The opinion of the court was delivered by: BREWSTER

 I. Case Type and Jurisdiction

 This class action is brought on behalf of all class-member judgment creditors in an earlier state court action. The class seeks to pursue their remedies against defendants under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968 and California statutory and common law. The Court has subject matter jurisdiction over RICO suits pursuant to 18 U.S.C. § 1964(c), and over the state law claims through supplemental jurisdiction under 28 U.S.C. § 1367.

 II. Background

 Plaintiffs were members of a state class action suit who obtained judgment against Defendant Charles J. Givens for false statements and misinformation regarding membership in the Charles J. Givens Organization, Inc. Of the twenty defendants, ten are people and ten are corporate entities or trusts. The individual defendants are Givens and four of his family members, four of his attorneys, and his accountant. The organizational defendants include Colonial Bank f/k/a Southern Bank of Central Florida and nine alleged holding companies or trusts controlled by Defendants.

 The class includes all current or former California residents who purchased memberships in the Charles J. Givens Organization, Inc. between May 5, 1986 and March 17, 1993, and who did not opt out of the class action in California Superior Court entitled Cella Gutierrez, et al. v. Charles J. Givens Organization, Inc., et al., Case No. 667169 (Super. Ct., San Diego Cty.) The class in that case claimed that Givens defrauded them through negligent misrepresentations and violated California's Consumer Legal Remedies Act and other statutory and common law provisions. Members paid significant fees to the Givens Organization for membership, consulting, and seminars. Plaintiffs allege that, by the end of 1994, the Organization had sold over 600,000 memberships nationwide and enjoyed annual revenues of "several hundred million dollars" from its seminars and other products.

 On July 22, 1996, the Superior Court, acting upon the jury's verdict, entered a judgment against Givens personally in the amount of $ 9,438,027 in compensatory damages, $ 4,719,013.50 in punitive damages, and $ 2,889,551.56 in costs and attorneys' fees, for a total liability of $ 17,046,592.06. Givens now claims that he has no assets from which to pay the judgment. Plaintiffs allege that all twenty defendants participated in a broad conspiracy to protect Givens' alleged millions of dollars of assets from the judgment and other legitimate debts.

 This action was filed on June 26, 1997. Four groups of defendants filed motions to dismiss. In an Order dated November 5, 1997, the Court denied all but one motion (see footnote), finding that Plaintiffs had stated a claim upon which relief could be granted. *fn1" The Court also certified the class action pursuant to Federal Rule of Civil Procedure 23. Defendants Reiserer and Chatzky have moved the Court to reconsider its decisions pursuant to Local Rule 7.1(1). None of the other defendants have joined this motion or moved to reconsider.

 III. Analysis

 A. Motions to Reconsider

 
1. Whenever any motion or any application or petition for any order or other relief has been made to any judge and has been refused in whole or in part. . . and a subsequent motion or application or petition is made for the same relief in whole or in part upon the same or any alleged different state of facts, it shall be the continuing duty of each party and attorney seeking such relief to present to the judge to whom any subsequent application is made a . . . certified statement of an attorney setting forth the material facts and circumstances surrounding each prior application, including inter alia: (1) when and to what judge the application was made, (2) what ruling or decision or order was made thereon, and (3) what new or different facts and circumstances are claimed to exist which did not exist, or were not shown, upon such prior application.
 
2. Except as may be allowed under Rules 59 and 60 of the Federal Rules of Civil Procedure, no motion or application for reconsideration shall be filed more than 30 days after the entry of the ruling, order or judgment sought to be reconsidered.

 This motion to reconsider was filed on December 8, 1997, thirty-three days after the Court's November 5, 1997 order was filed. Therefore, pursuant to Local Rule 7.1(i)(2), this motion is ...


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