The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S COUNSEL'S REQUEST FOR ADDITIONAL TIME TO PAY DISCOVERY SANCTIONS AS MOOT Doc. 151, DENYING DEFENDANTS' REQUEST FOR ATWATER RESERVE OFFICER DISMISSAL AND AWARD OF ATTORNEYS' FEES PURSUANT TO RULE 41, FEDERAL RULES OF CIVIL PROCEDURE (Doc. 163), DISMISSING REMAINING STATE LAW CLAIMS AGAINST DEFENDANTS CARL CAMPODONICA; WILLIAM AND LILLIAN CAMPODONICA TRUST; JOHN JULIUS; GARTH PECCHENINO; DAVID GRESHAM; HOSTETLER INVESTMENTS, LLC; BELLVUE ROAD PARTNERS, LLC; CENTURY 21 SALVADORI REALTY, AND STEPHEN MAUZY PURSUANT TO 28 U.S.C. 1367(c)(3), AND DIRECTING PLAINTIFF TO LODGE ORDER AND JUDGMENT
The Order filed on October 10, 2008, (Doc. 145), provided:
1. Plaintiff's Motion for Relief from the August 7, 2008 order is DENIED. Plaintiff shall respond to Defendants' request for production of documents, set number one, on or before October 15, 2008, and shall pay attorney's fees in the amount of $840.00 on or before December 15, 2008. Plaintiff's failure to timely comply with either the document production or payment of attorney's fees, by the respective dates provided, will result in the dismissal with prejudice of Plaintiff's claims against Defendants CARL CAMPODONICA; WILLIAM AND LILLIAN CAMPODONICA TRUST; JOHN JULIUS; GARTH PECCHENINO; DAVID GRESHAM; HOSTETLER INVESTMENTS, LLC; and BELLVUE ROAD PARTNERS, LLC.
2. Plaintiff's request to dismiss this action against Defendants pursuant to 28 U.S.C. § 1367(c)(3) and toll the statute of limitations pursuant to 28 U.S.C. § 1367(d) is GRANTED; however, it is conditioned on Plaintiff's timely compliance with the August 7, 2008 Order as set forth above.
Plaintiff timely provided the discovery responses as required by the October 10, 2008 Order. (Doc. 148). On December 15, 2008, Plaintiff's Counsel, Kevin Little, filed a request for additional time to pay the attorney's fees awarded as a sanction. Plaintiff's request was deferred pending Defendants' response to Mr. Little's confidential declaration filed under seal setting forth his allegations concerning his current inability to pay the monetary sanctions; Defendants' response was due on February 17, 2009 and Mr. Little's reply due on February 23, 2009. (Doc. 160).
Defendants' response to Mr. Little's confidential declaration was filed under seal on January 26, 2009. (Doc. 163). In this response, Defendants argued that Mr. Little's request for additional time to pay the monetary sanction should be denied. Defendants further argued that, even if the Court granted Mr. Little additional time to pay the sanction, an additional condition for dismissal of this action pursuant to Rule 41, Federal Rules of Civil Procedure, should be imposed. Defendants contend: The Court's having granted all of the various summary judgment motions filed by public entity or public employee defendants, it is now clear that this action was improvidently 9 filed in federal court. The claims, however baseless they may be, asserted against the Private Defendants, should never have been brought in this Court. Mr. Little has sought, unsuccessfully, to turn an ill-conceived and unsupported real estate fraud claim into an equally faulty and ill-conceived civil rights claim. Plaintiff now seeks to redress the improper filing of this action and avoid an award of attorney's fees by asking this Court to exercise its discretion under FRCP, Rule 41 in dismissing this action without prejudice. In light of the failure of either Mr. Little or the Plaintiff to comply with the condition imposed on dismissal of this action without prejudice by the Court, dismissal with prejudice is the only remedy which will protect both the dignity of this Court and the rights of the Private Defendants.
Defendants further argue that, if Mr. Little is given additional time to pay the monetary sanctions:
Any such dismissal should be conditioned upon the right of the Private Defendants to apply to this Court for an award of fees unnecessarily incurred by the Private Defendants in the defense of this action in this forum.
On February 20, 2009, Mr. Little filed a notice of payment of the monetary sanctions and requested that his request for an extension of time to pay the monetary sanctions be denied as moot and this action be dismissed pursuant to 28 U.S.C. § 1367. (Doc. 169). Defendants requests for dismissal of this action with prejudice and/or for an award of attorneys' fees under Rule 41, Federal Rules of Civil Procedure, are DENIED. Plaintiff did not seek dismissal of the remaining state law claims pursuant to Rule 41; his motion for dismissal was based on 28 U.S.C. § 1367. Defendants' request that dismissal of this action against the remaining defendants be conditioned upon payment of attorneys' fees is premised on cases awarding attorneys' fees as a condition to a Plaintiff's voluntary dismissal pursuant to Rule 41. Plaintiff does not seek a voluntary dismissal of the action under Rule 41.
Mr. Little has complied with the August 7, 2008 Order by providing the discovery and paying, albeit belatedly, the monetary sanction. Plaintiff's request for an extension of time to comply with the monetary sanction is DENIED AS MOOT.
Plaintiff's request to dismiss this action against Defendants Carl Campodonica, William and Lillian Campodonica Trust, John Julius, Garth Pecchenino, David Gresham, Hostetler Investments, LLC, Bellevue Road Partners, LLC, Century 21 Salvadori Realty, and Stephen Mauzy pursuant to 28 U.S.C. § 1367(c)(3) and to toll the statute of limitations pursuant to 28 U.S.C. § 1367(d) is GRANTED.
Plaintiff shall prepare and lodge a form of order consistent with this Memorandum Decision and directing entry of judgment against Plaintiff and in favor of all defendants by the Clerk of the Court within five (5) court days of service of this Memorandum Decision.