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Marin v. Shaw

January 17, 2007

MEL M. MARIN, PLAINTIFF,
v.
STEPHEN SHAW, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the motion for summary judgment (#170) or, in the alternative, for summary adjudication of claims by the remaining Defendant Stephen Shaw.

BACKGROUND

On July 31, 2001, Plaintiff Mel M. Marin filed a Complaint for Malpractice and Breach of Fiduciary Duty naming a single Defendant Stephen Shaw. Plaintiff alleged that he met with Shaw for the purpose of retaining Defendant Shaw to represent him in an ongoing action in state court, and that Plaintiff confided information during the meeting to Defendant Shaw not generally known in the legal field or in the community at large. The Complaint alleged that Defendant Shaw declined to represent Plaintiff in any action because of an inability to pay and took the information held in confidence and used that information against Plaintiff in an unrelated state court action to engineer the dismissal of that action against Plaintiff. Complaint at pages 2 and 3.

On February 14, 2003, Defendant Stephen Shaw represented by Samy Henein of Suppa, Trucchi & Henein, LLP filed an Answer to Plaintiff's Complaint denying each and every allegation of the Complaint and setting forth a number of affirmative defenses.

On October 10, 2003, Plaintiff filed a First Amended Complaint naming three Defendants as follows: 1) Stephen Shaw; 2) Suppa, Trucchi & Henein, LLP, a California Partnership; and 3) the United States Army.

On October 4, 2004, the Court granted a motion by the Defendant United States Army to dismiss for improper service and dismissed the United States Army from the action without prejudice.

On February 8, 2005, Plaintiff filed a Second Amended Complaint naming four Defendants as follows: 1) Stephen Shaw; 2) Suppa, Trucchi & Henein, LLP, a California Partnership; 3) the Department of Defense; and 4) the Secretary of the Department of Defense.

On March 9, 2006, this Court granted a motion by the Department of Defense and the Secretary of the Department of Defense and dismissed all claims in the Second Amended Complaint against the Department of Defense and the Secretary of the Department of Defense.

On March 30, 2006, this Court ordered Plaintiff to show cause why this action should not be dismissed for failure to file provide proof of service of the amended complaints upon Defendant Shaw and failure to serve any complaint upon Defendant Suppa, Trucchi & Henein.

On May 15, 2006, this Court held a hearing on the Order to Show Cause. Plaintiff appeared and informed the Court that he had mailed the amended complaints to counsel for Defendant Shaw. Plaintiff asserted that the United States Marshal had failed to complete service upon Suppa, Trucchi & Heinen or, in the alternative, that Defendant Suppa, Trucchi & Henein had waived service of the Complaint.

On June 7, 2006, this Court entered an order dismissing Defendant Suppa, Trucchi & Henein, LLP, a California Partnership, without prejudice and referred the case to the Magistrate Judge for a case management conference in an effort to move forward with the claims against the only remaining Defendant Shaw.

On July 5, 2006, the Magistrate Judge held a case management conference.

On July 11, 2006, the Magistrate Judge issued an order which required that "All discovery, including expert discovery, shall be completed on or before September 25, 2006"and that "[a]ll motions, other than motions to amend or join parties, or motions in limine, shall be FILED on or before October 10, 2006."

On October 10, 2006, Defendant filed the motion now before this Court for summary judgment or, in the alternative, for ...


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