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Shepard Johnson v. Chester Mitchell

November 3, 2011


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Plaintiff initiated this diversity action for malicious prosecution and civil conspiracy to commit malicious prosecution on July 23, 2010 and is currently proceeding with the second amended complaint filed on August 24, 2011. (See Dkt. No. 80.)

Before the court is plaintiff's motion for leave to file a third amended complaint. (Dkt. No. 111.) A hearing on this motion is currently scheduled for November 10, 2011. No opposition to the motion was filed. Having reviewed the motion, the court determines that it is suitable for decision without oral argument. The hearing set for November 10, 2011 is therefore vacated.

Also before the court are letters submitted by defendants Kahler and Tornga that purport to be answers and/or motions to dismiss plaintiff's second amended complaint. (Dkt. Nos. 102, 113.)

In light of the above-mentioned filings, the Court issues the following order. Motion for leave to file third amended complaint Plaintiff seeks leave to file a third amended complaint, and has submitted a proposed third amended complaint with his motion. Plaintiff proposes to add six additional defendants, remove his demand for a jury trial, and correct certain typographical errors. (See Motion for Leave to File Third Amended Complaint, Dkt. 111 ["Mot."] ¶ 12.)

"After a party has amended a pleading once as a matter of course, it may only amend further after obtaining leave of the court, or by consent of the adverse party." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). Generally, "leave shall be freely given when justice so requires" and this policy is "to be applied with extreme liberality." Id. However, leave to amend is not without limits. Courts consider four factors in deciding whether to permit amendment: (1) bad faith on the part of the plaintiff; (2) undue delay; (3) prejudice to the opposing party; and (4) futility of the proposed amendment. Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999).

In his motion, plaintiff acknowledges that the court previously indicated that "amendments to the complaint in this case are at an end." (Dkt. No. 78, at p. 6.) However, plaintiff explains that after he filed the second amended complaint, defendant Ford Hermanson filed a purported motion to dismiss, which included an e-mail from defendant Miner to various persons that were involved in filing criminal complaints against plaintiff in Panama. (Dkt. No. 82, at pp. 51-52.) This e-mail alerted plaintiff to the names of additional alleged conspirators, which plaintiff now seeks to add as defendants. This newly discovered information is sufficient to overcome the court's reluctance to allow another amendment to the complaint. There is no indication that plaintiff was acting in bad faith, with undue delay, or that the proposed amendment would be futile. Moreover, there has been no meet and confer or scheduling order and the parties have not engaged in discovery. No opposition to plaintiff's motion was filed. Therefore, it will be granted. That said, as plaintiff himself acknowledges, the case needs to move forward, and leave to amend based on this newly discovered information should not be construed as a license for further amendments.

Plaintiff will be required to file and serve the third amended complaint on the defendants who have already been served with process within fourteen (14) days of the date of service of this order. Those defendants will be required to respond to the third amended complaint within 21 days of being served. However, defendants who have already answered the second amended complaint (defendants Ford Hermanson, Patricia Hermanson, James Lynch, David Miner, Sarah Miner, Todd Johnson, Efim Shargorodsky, Elena Shargorodsky, Chester Mitchell, and Catherine Mitchell) will not be required to file another answer to the third amended complaint. Unless they elect to amend their answers, their prior answers will be deemed to be answers to plaintiff's third amended complaint.

Plaintiff will also be required to complete proper service of process with the third amended complaint on defendants who have not yet been served with process, including the additional defendants to be added (Smith, Cohen, Fine, Parsons, Hamond, and the Solarte Inn Corporation), within 28 days of the date of service of this order. Those defendants will be required to respond to the third amended complaint within 21 days of being served.*fn1

Letters submitted by defendants Kahler and Tornga

On September 26, 2011, defendant Julie Anne Kahler filed a "Request for Julie Kahler's Dismissal from Shephard Johnson's Complaint." (Dkt. No. 102.) Also, on October 12, 2011, defendant Sandra Tornga filed a response to and request for dismissal of plaintiff's complaint. (Dkt. No. 113.) These documents are essentially letters to the district judge outlining these defendants' versions of the facts related to this case. To the extent the letters can be construed as motions to dismiss, they have not been noticed for hearing nor have they been served on plaintiff or the other parties who have appeared in this action.

Procedural requirements serve an important function in the orderly conduct of litigation, and pro se litigants are expected to comply with procedural rules. See McNeil v. United States, 508 U.S. 106, 113 (1993) ("[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel"). Thus, even though pleadings are liberally construed in their favor, pro se litigants remain bound by the rules of procedure. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir.1986); see also American Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107 (9th Cir. 2000) (holding that pro se litigants are not excused from knowing the most basic pleading requirements). The Local Rules further provide that failure to comply with the Federal and Local Rules are grounds for judgment by default and other appropriate sanctions. E.D. Cal. L.R. 183.

The court understands that procedural rules are complex and can be confusing. Titling a document a "motion," however, is more than a mere formality. Court personnel as well as opposing counsel need certainty in characterizing, calendaring, and responding to pending matters. Unnecessary judicial resources are expended when an improperly styled matter is presented to the Clerk for filing pursuant to an unorthodox procedure. Neither court personnel nor opposing counsel are prepared to construe or respond to filings which do not comply with the federal and local rules. Letters addressed to the court do not constitute proper pleadings or motions in response to a complaint. See Fed. R. Civ. P. 7. Accordingly, to the extent defendants Kahler and Tornga's letters can be construed as motions to dismiss, they are denied without prejudice.

In the event defendants Kahler and Tornga intend to file answers to plaintiff's complaint, they must comply with the requirements of Rule 8(b), (c), and (d) of the Federal Rules of Civil Procedure. Among other requirements, the answering party must "admit or deny the allegations asserted against it by an opposing party." Fed. R. Civ. P. 8(b)(1)(B). "A denial must fairly respond to the substance of the allegation. A party that intends in good faith to deny all the allegations of a pleading -- including the jurisdictional grounds -- may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial." Fed. R. Civ. P. 8(b)(2)-(5). An allegation -- other than one relating to the amount of damages -- is admitted if a responsive pleading is required and ...

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