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Igor Chepel; Roof Vera Chepel, As Guardian Ad Litem For v. the Law Office of Frederick

June 10, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently before the court is a "Motion for Relief From Order Vacating Motions and Motion for Attorneys' Fees/Costs [F.R.C.P. 60, Cal. Civ. Proc. § 425.16]" filed by defendants Frederick S. Cohen, The Law Office of Frederick S. Cohen, and Mary Ross (collectively, "Cohen Defendants"). The Cohen Defendants move this court to vacate the order closing this case as a result of plaintiff's notice of voluntary dismissal and award them over $17,000 in attorneys' fees in connection with an anti-SLAPP motion that the Cohen Defendants filed before they were served in this action.*fn1 For the reasons that follow, the undersigned denies the Cohen Defendants' motions because "extraordinary circumstances" do not support the reopening of this case under Federal Rule of Civil Procedure 60(b)(6).


Plaintiff Igor Chepel, who is proceeding without counsel and in forma pauperis, filed a complaint alleging violations of his civil rights pursuant to 42 U.S.C. § 1983 and various state law claims.*fn2 (See generally Compl., Dkt. No. 1.) This action arose out of a contentious custody dispute between plaintiff Igor Chepel and Irena Chepel, which proceeded in Sacramento County Superior Court ("Superior Court"). (Compl. ¶¶ 2-3.) The complaint alleged that in connection with the custody proceedings, the Superior Court appointed defendant Frederick S. Cohen, an attorney, to represent two of the three minor children, and also appointed defendant Dr. Larry Nicholas as a family law mediator.*fn3 (Id. ¶¶ 3-4, 35.) Generally, the complaint alleged that defendants Cohen and Nicholas conspired to make a successful recommendation to the Superior Court that the children be placed in Irena Chepel's custody for a six month period, where the children were abused. (Id. ¶¶ 5-7, 37-45, 47.) It further alleged that after the Superior Court subsequently returned the children to Igor Chepel's custody, defendants Cohen and Nicholas further conspired to successfully recommend that Irena Chepel be granted unsupervised visits with the children, during which the children again suffered abuse at the hands of Irena Chepel and her boyfriend. (Id. ¶¶ 8-13, 37, 46.)

The complaint alleged five claims for relief: (1) a claim pursuant to 42 U.S.C. § 1983 alleging that defendants, acting under color of state law, deprived plaintiff Igor Chepel of his parental rights and alienated him from his children, in violation of the First and Fourteenth Amendments; (2) a state law claim for intentional infliction of emotional distress based on defendants' conduct; (3) a state law claim for negligent infliction of emotional distress based on defendants' conduct; (4) a state law claim for fraud based on an intentional misrepresentation made by defendant Frederick Cohen to plaintiff Igor Chepel; and (5) a state law claim for defamation against defendants Frederick Cohen and Dr. Larry Nicholas.

On March 12, 2010, the undersigned entered an order and findings and recommendations granting Igor Chepel's request to proceed in forma pauperis and ordering that Roof Vera Chepel*fn4 would not be permitted to represent the minor plaintiffs without retaining an attorney for those children. (See Order & Findings and Recommendations, Mar. 12, 2010, Dkt. No. 4.) The adult plaintiffs were provided with additional time to retain counsel to represent the minors. (Id. at 6.) The undersigned also recommended that plaintiff's "defamation of character" claim be dismissed as barred by California's litigation privilege found in California Civil Code 47(b). (Id. at 4-6.) On April 19, 2010, the court issued findings and recommendations recommending that because the adult plaintiffs failed to retain counsel for the three minor children within the additional time granted by the court, the minor plaintiffs be dismissed from this action without prejudice and that Roof Vera Chepel, as guardian ad litem for the minor plaintiffs, likewise be dismissed without prejudice. (Findings & Recommendations, Apr. 19, 2010, Dkt. No. 5.) The district judge assigned to this action adopted both sets of findings and recommendations. (Order, Apr. 29, 2010, Dkt. No. 6; Order, May 21, 2010, Dkt. No. 7.)

On May 24, 2010, the undersigned ordered service of the complaint, as modified, on the Cohen Defendants and Nicholas. (Order, May 24, 2010, Dkt. No. 8.) A summons was issued that same day. (Summons, Dkt. No. 9.)

On June 3, 2010, Igor Chepel filed a statement declaring that on May 28, 2010, he delivered the requisite documents to the U.S. Marshal's Office for the purpose of effectuating service on defendants. (Pl.'s Statement, Dkt. No. 12.)

On August, 9, 2010, the Cohen Defendants filed a special motion to strike plaintiff's state law claims pursuant to California's anti-SLAPP statute, California Code of Civil Procedure § 425.16, and a motion to dismiss plaintiff's Section 1983 claims pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 13.) Notably, the court's docket reveals that at the time the Cohen Defendants filed their motions, they had not been served with the summons and complaint by the U.S. Marshal. Documents filed by the U.S. Marshal reflect that the U.S. Marshal did not complete service of the summons and complaint on any defendants because plaintiff voluntarily dismissed this action. (See Process Receipt & Return Forms, Dkt. No. 21.) The Cohen Defendants noted in a status report that they returned waivers of service to the U.S. Marshal on August 6, 2010. (Cohen Defs.' Status Report at 2 n.3, Dkt. No. 25.) No such waivers are reflected on the court's docket.

On August 30, 2010, plaintiff Igor Chepel, who was then the only remaining plaintiff in this action, filed a "Notice of Dismissal Without Prejudice," seeking dismissal of this action without prejudice pursuant to Federal Rule of Civil Procedure 41. (Notice of Dismissal, Dkt. No. 14.) Although plaintiff did not specify a particular subsection of Rule 41 under which the notice of dismissal was filed, the undersigned construed the notice as being filed pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) because the opposing parties had not yet filed answers or motions for summary judgment. (Order, Sept. 8, 2010, Dkt. No. 15.) In so construing plaintiff's notice, the undersigned noted that no court order was required for plaintiff to effectuate a voluntary dismissal without prejudice.*fn5 (See id.) Nevertheless, "for the sake of clarity," the court entered an order on September 8, 2010, which acknowledged the effect of plaintiff's voluntary dismissal, vacated all pending dates in this matter including the hearing on the Cohen Defendants' motions, and directed that the case be closed. (See id.) Accordingly, the Clerk of Court closed this case on September 8, 2010.

On September 27, 2010, the Cohen Defendants filed the pending motions for relief from the court's September 8, 2010 order pursuant to Federal Rule of Civil Procedure 60, which also seeks attorneys' fees and costs pursuant to California's anti-SLAPP statute despite the fact that the court never passed on the merits of the Cohen Defendants' special motion to strike. The Cohen Defendants seek $17,105.14 in attorneys' fees and costs for 74.3 hours of billable time expended by their counsel.*fn6 (Sommer Decl., Ex. A, DKt. No. 18.) On October 19, 2010, plaintiff filed a written opposition to the Cohen Defendants' motion that, among other things, indicated that plaintiff had filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Eastern District of California, proceeding under case number 10-41945.*fn7 (Pl.'s Opp'n, Dkt. No. 22.) Plaintiff filed his voluntary petition for bankruptcy on August 18, 2010. (U.S. Bankr. Court, E. Dist. of Cal., No. 10-41945, Dkt. No. 1.)

Based on the court's review of plaintiff's opposition and the bankruptcy court's docket in case number 10-41945, the undersigned ordered supplemental briefing by plaintiff on the status of the bankruptcy proceedings. This briefing was ordered because it appeared that the bankruptcy trustee had concluded that plaintiff's bankruptcy estate had been fully administered, and that the trustee had filed a "Notice of Filing Report of No Distribution" in regards to plaintiff's Chapter 7 petition.*fn8 (U.S. Bankr. Court, E. Dist. of Cal., No. 10-41945, Dkt. Nos. 28-30.) Plaintiff filed two notifications regarding the status of the bankruptcy proceedings, on of which includes a "Discharge Of Debtor" order reflecting that plaintiff was granted a discharge on December 10, 2010. (Pl.'s Notice, Ex. C, Dkt. No. 26; see also U.S. Bankr. Court, E. Dist. of Cal., No. 10-41945, Dkt. No. 35.) A Final Decree was entered in the bankruptcy action on January 6, 2011, and the bankruptcy case has been closed. (U.S. Bankr. Court, E. Dist. of Cal., No. 10-41945, Dkt. Nos. 36-37.)


Federal Rule of Civil Procedure ...

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