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United States of America v. James O. Molen (Also Known As James-Orbin: Molen); et al


August 19, 2011


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


Defendants James Molen and Sandra Molen (the "defendants") are proceeding without counsel in this action.*fn1 Defendants have filed two motions contending that the Status (Pretrial Scheduling) Order (the "PTSO") (Dkt. No. 76), was both prematurely issued and improper. (Dkt. Nos. 80 ("Opposition To Pretrial Scheduling Order As Premature And Denial Of Magistrate Judge Forms"); 87 ("Opposition To And Motion To Reverse Pretrial Scheduling Order As Premature And Submission Of Magistrate Judge Denial Forms").)*fn2 Plaintiff the United States of America (the "plaintiff") filed a written opposition to the motions. (Dkt. No. 90.) Because oral argument would not materially aid the resolution of the pending motions, these matters are submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E.D. Local Rule 230(g). The undersigned has fully considered the parties' briefs and the record in this case and, for the reasons that follow, the undersigned denies both defendants' motions challenging the PTSO. (Dkt. Nos. 80, 87.)


On September 23, 2010, plaintiff filed its complaint against defendants, as well as against defendants' alleged trust and partnership entities. (Compl., Dkt. No. 1.) The complaint alleges multiple failures to pay federal taxes by the defendants and the partnership. (Compl. ¶¶ 17-18, 28, 30, 34, 36-41.) The complaint also alleges that the trust is both a sham and the defendants' alter ego, and plaintiff seeks to set aside the purported transfer of real property from the defendants to the trust. (Id. ¶¶ 42-54, p. 13 ¶¶ D-E.) Plaintiff seeks foreclosure of tax liens encumbering the defendants' alleged real property in Butte County, California. (Id. at p. 13 ¶ I.)

The complaint alleges that defendants "reside in Butte County, California, within this judicial district . . . ." (Compl. ¶ 5.) The complaint further alleges that defendants have occupied 189 Connors Avenue in Butte County, California, "as their residence from at least 1976 to the present." (Compl. ¶¶ 17-18, 44, 49.)

Defendants filed a verified Answer to the complaint on November 15, 2010. (Answer, Dkt. No. 4.) In that answer, defendants asserted defenses, including a lack of personal jurisdiction, on behalf of themselves as individuals, as well as on behalf of entities (i.e., the trust and the partnership). (Id. at 1-2, 5, 7, 8.) The portion of the Answer asserting defenses on behalf of these entities has since been stricken. (Dkt. Nos. 26.)


a. The PTSO Was Not "Premature"

In anticipation of the Status (Pretrial Scheduling) Conference set for June 9, 2011, plaintiff filed a Joint Scheduling Statement that included electronic signatures from plaintiff and both defendants. (Dkt. No. 68.) The Joint Scheduling Statement contained both plaintiff's and defendants' respective positions on issues of jurisdiction, trial, discovery, and the like. (Id.) In reviewing these respective positions, the undersigned found that the parties had supplied the information required for setting a trial date and related deadlines, and accordingly, the undersigned issued an order vacating the June 9, 2011 hearing date. (Dkt. No. 73.) Within that order, however, the undersigned directed all parties to complete and file "Consent to / Decline of Jurisdiction of United States Magistrate Judge" forms by June 23, 2011, so as to ensure that the appropriate trial judge was identified within the PTSO. (Id.)

A discussion of the Local Rules governing the undersigned's role in this action helps explain the timing of the entry of the PTSO. The Eastern District Local Rule 302(c)(21)*fn3 provides that the Magistrate Judge shall preside over dispositive and non-dispositive motions and matters in "pro se actions"*fn4 like this one. The Magistrate Judge shall hear "all general pretrial matters" in such cases, making determinations regarding certain specific issues and making "proposed findings of fact and recommendations" regarding others. E.D. Local Rule 303(a), 304(a). Upon "the consent of all parties," however, the Magistrate Judge may conduct the trial itself, in addition to the "general pretrial matters" referenced above. E.D. Local Rule 305(b) (emphasis added). Thus, in civil "pro se actions" like this one, the Magistrate Judge makes determinations regarding all "general pretrial matters" short of the actual trial, and typically, if the matter progresses through trial, the assigned District Judge serves as the trial judge. E.D. Local Rules 302(c)(21), 303(a), 304(a), 305(b). If, however, all parties consent, the Magistrate Judge may serve as the trial judge in place of the District Judge. E.D. Local Rule 305(b). Accordingly, if and when one litigant files the "Consent to / Decline of Jurisdiction of United States Magistrate Judge" form expressly declining to have the Magistrate Judge serve as the trial judge, this obviates the need for other parties to file the form. In short, when one litigant declines to have the Magistrate Judge serve as trial judge, it becomes impossible for "all parties" to consent to the Magistrate Judge serving as the trial judge (E.D. Local Rule 305(b), and it becomes clear that the United States District Judge will indeed preside over the trial in that case.

Here, in response to the undersigned's order (Dkt. No. 73), plaintiff filed the requisite form declining to have the undersigned serve as the trial judge. (Dkt. No. 74.) Upon that filing, it became clear that the assigned district judge, Judge Morrison England, would preside over the trial in this case. Accordingly, there being no need to wait to receive "Consent" forms from other parties, on June 15, 2011, the undersigned issued the PTSO identifying Judge England as the trial judge. Accordingly, that the undersigned's previous order (Dkt. No. 73) directed the parties to file "Consent to / Decline of Jurisdiction of United States Magistrate Judge" forms by June 23, 2011, does not render the PTSO premature or improper. The PTSO (Dkt. No. 76) designates the proper trial judge and is properly based on the undersigned's review of the parties' Joint Scheduling Statement (Dkt. No. 68). Defendants' motions to "reverse" the PTSO as "premature" (Dkt. Nos. 80, 87) are therefore denied.

Plaintiff and defendants agree that the district judge should preside over trial in this case. (Dkt. Nos. 74, 77-78.) Indeed, like plaintiff, defendants filed forms expressly declining to have the undersigned preside over the trial. (Dkt. Nos. 77-78.) The PTSO, which identifies United States District Judge Morrison England as the trial judge, is thus in keeping with the defendants' preferences on the issue. In any case, even assuming arguendo that the PTSO was "premature" because it was issued before defendants filed their "Consent to / Decline of Jurisdiction of United States Magistrate Judge" forms, defendants were not prejudiced by such issuance. The PTSO identifies the district judge as the trial judge, exactly as the defendants have requested. (Dkt. Nos. 77-78.)

The undersigned also notes that defendants challenge the PTSO in part because their "Consent to / Decline of Jurisdiction of United States Magistrate Judge" forms were "denied by [Judge] Newman." (Dkt. No. 87 at 2.) This is inaccurate. The undersigned did not "deny" defendants' "Consent to / Decline of Jurisdiction of United States Magistrate Judge" forms. Similarly, defendants claim that the undersigned issued the PTSO "setting dates and assignment to Morrison C. England for trial without hearing from all parties." (Dkt. No. 87 at 2.) This is also inaccurate. As described above, the undersigned issued the PTSO after reviewing the parties' Joint Scheduling Statement (Dkt. No. 68) and thus, after "hearing from" defendants.

b. The PTSO Does Not Improperly "Assume" Jurisdiction And Venue

Defendants argue in passing that the PTSO is improper because it includes the "assumption that Jurisdiction and venue are found to be proper." (Dkt. No. 87 at 2.) Defendants argue that neither is proper, "because they are not supported with any required substantive Code of Federal Regulations that applies to and subjects the Defendants." (Dkt. No. 87 at 2.)

The court has already examined the propriety of jurisdiction in this case and found jurisdiction to be proper (Dkt. No. 26 at 12-13), and defendants have not offered any compelling reasons for the undersigned to readdress the issue. Similarly, as to venue, defendants have not offered a compelling argument as to the impropriety of venue and have not proposed an alternate venue for this action. Also, the undersigned has already rejected the defendant's oft-attempted tact of citing a lack of substantive "regulations" as the sole support for their various arguments. (E.g., Dkt. No. 60 at 5-10.) As to defendants' passing argument that venue is improper because it is somehow "not supported by" federal regulations, the undersigned again rejects that argument. (Dkt. No. 87 at 2.)

Finally, defendants included their positions on jurisdiction and venue within the Joint Scheduling Statement filed in anticipation of the PTSO. (Dkt. No. 68.) The undersigned considered those positions prior to issuing the PTSO. Plaintiffs' motion to "reverse" the PTSO (Dkt. No. 87) on grounds that it "assumes" the issues of jurisdiction and venue is denied.

c. The PTSO's Reference To "A.K.A.s" Of Defendants Does Not Render The PTSO Improper

Defendants purport to "reject" the PTSO's "references to their agents/executors, Sandra-Lyn: Molen and James-Orbin: Molen as a.k.a's of the Defendants (legal fictions); no different than Guy Patrick Jennings to be called an a.k.a. of the Plaintiff United States of America." (Dkt. No. 87 at 2.) Puzzlingly, this so-called "rejection" conflicts with previous representations defendants have made to this court.

Defendants appeared for a hearing on January 27, 2011. On the record during that hearing, defendant James Molen informed the court both of his preference to be referred to as "James-Orbin: Molen," and his preference that the caption in this action be amended to include that name. Sandra Molen had also expressed a preference to be referred to as "Sandra-Lyn: Molen." (Dkt. No. 8, 2-3.) Accordingly, the court amended the case caption to reflect that these two defendants are also known as these preferred names. (Dkt. No. 26.)

Notwithstanding defendants' more recent and conflicting request, however, whether the PTSO identifies defendants by their "preferred" names, their given names, or both, defendants have not compellingly explained how such identification itself renders the PTSO improper. The undersigned declines to find as much. Defendants' motions (Dkt. No. 80, 87) are denied.

For the foregoing reasons, IT IS HEREBY ORDERED that:

1. Defendants' "Opposition To Pretrial Scheduling Order As Premature And 6 Denial Of Magistrate Judge Forms" (Dkt. Nos. 80) is denied.

2. Defendants' "Opposition To And Motion To Reverse Pretrial Scheduling Order As Premature And Submission Of Magistrate Judge Denial Forms" (Dkt. No. 87) is denied.

3. The hearing dates for these motions (Dkt. Nos. 80, 87) are vacated. IT IS SO ORDERED.

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