Mann v. Castiel ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOHN B. MANN, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 09-2137 (RCL)
)
DAVID CASTIEL, et al., )
)
)
Defendants. )
)
MEMORANDUM OPINION
This matter comes before the Court on a joint motion to dismiss by defendants David and
Cameran Castiel and Gera1d Helman. These defendants assert that plaintiffs failed to comply
with the Court’s order of March 9, 2010, which required plaintiffs to file proof of service of
process or show cause for their failure to effect timely service pursuant to Rule 4(m) of the
F ederal Rules of Civil Procedure. Upon consideration of the Court’s order [8], the plaintiffs’
response [9], these defendants’ motion [10], the applicable law, and the record herein, the Court
will dismiss the case without prejudice.
BACKGROUND
In 2005, Ellipso, Inc., brought suit against now-plaintiffs John Marm, Mar1n
Technologies, LLC, The Registry Solutions Company, and Robert Patterson.l Ellips0, Inc. v.
Mann, Case No. 05-cv-1 186. On August 5, 2008, the Court dismissed all of Ellipso’s claims.
(Ellz`pso, Inc., [199] Order Dismiss All Remaining C0unts.) The Court ordered Ellipso to pay
damages on a preliminary injunctive bond and attorneys’ fees in two separate orders respectively
issued on September 30, 2008, and January 29, 2009. (Ellz`pso, Inc., [215] Mem. Op. and Order
1 Ellipso, Inc., is a telecommunications company operated by now-defendant David Castie1.
Granting Mot. Damage; [241] Order Granting Att’ys’ Fees.) Ellipso subsequently entered
bankruptcy and is currently before the United States Bankruptcy Court for the District of
Co1umbia. Irz res Ellipso, Inc., Case No. 09-bk-Ol48 (Chapter ll). All plaintiffs and defendants
David Castiel and Gerald Helman are listed as creditors in the Ellipso bankruptcy. Ia’.
Plaintiffs jointly initiated the present action against 30 named defendants and an
unidentified number of "John Does" on November 16, 2009.2 ([1] Compl.) Plaintiffs enumerate
28 claims for relief in their complaint, including racketeering, larceny, negligence, unjust
enrichment, and unfair trade practices. (Compl. 1]1]199-339.) The complaint alleges that the
named defendants participated in an elaborate racket - dubbed a "bust-out scheme" by plaintiffs
- spearheaded by the now-bankrupt Ellipso, lnc.3 (Compl. 114-l l .) Plaintiffs attached a draft
copy of the complaint in a Proof of Claim filed in bankruptcy court on October 26, 2009. (In rex
Ellipso, Irzc., [348] Mot. Leave Am. Claim ll-l.)
The three moving defendants asked the bankruptcy court to extend Ellipso’s automatic
stay to enjoin this case on February l, 2010. (In re: Ellips0, Inc. , [671] Emergency Mot. Stay
Dist. Ct. RICO Compl.) On March 3, 2010, the bankruptcy court denied that motion. (In re.'
Ellipso, Inc., [758] Order Denying Emergency Stay.) The three defendants subsequently moved
this Court to stay these proceedings on February 12, 2010. ([7] Mot. Stay or Alt. Extend Time
File Answer (hereinafter "Mot. Stay".)) ln this motion they claimed that only 3 of the 30 named
defendants had been served. (Id. at 3.) Plaintiffs did not respond to this motion.
2 Plaintiffs John Mann and Robert Patterson appear pro se. Both signed on to a single complaint
along with Mann Technologies, LLC, and The Registry Solutions Company, both of whom are
represented by attorney Ronald Patterson. (See Compl.)
3 Ellipso is shielded from suit in this case by an automatic bankruptcy stay under ll U.S.C. §
362(a) and is therefore not a named defendant
On March 9, 2010, the Court ordered plaintiffs to file proof of service of process on the
named defendants or show cause by March 22, 2010, as to why this case should not be dismissed
for failure to effect timely service. ([8] Order Advising Pls. File Proof Process (hereinafter
"Order: 03/09/10”.)) Plaintiffs filed a response on March 25, 2010. ([9] Pls.’ Resp. to Ct’s.
Order Conceming Service (hereinafter "Pls.’ Resp.")) Plaintiffs did not attach affidavits of
service to their response. (See id.) Plaintiffs ask for a 60-day extension of time to effect service
and state in pertinent part that plaintiffs: had served four defendants (id at 11 l); had issued
summonses for four more defendants and sent them out for service (z'cz'. at jj 6); and will serve 19
defendants - nine "corporate defendants" and ten "law finn defendants" - pending the
conclusion of the Ellipso bankruptcy (z`d at 1[1] 2-3). Plaintiffs claim that they filed this
complaint "irzter alia, because of statute of limitations considerations" and may voluntarily
dismiss a number of defendants pending the resolution of the bankruptcy proceedings (Id. at 1[1[
7-8.)
On April 7, 2010, the three moving defendants sought dismissal of this case pursuant to
Rule 4(m) of the Federal Rules of Civil Procedure. ([10] Joint Mot. to Reject Pls.’ Resp. and
Dismiss (hereinafter "Mot. Dismiss").) They urge the Court to reject plaintiffs’ response as
untimely. (Id. at 2-3.) The three defendants alternatively argue that plaintiffs’ response, even if
considered, is insufficient to prove service, or good cause to extend time for service and thus
fails to comply with the Court’s order. (Id. at 9-10, 11 l; 1l-l3, 1[1] 3-4.) They admit to
"receiv[ing] a copy of a summons and the RICO Complaint." (Ia’. at 9, jj 1.) The three moving
defendants allege that plaintiffs have committed various bad faith acts in the prosecution of this
case, including the filing of a frivolous lis pendens against the residence of defendants David and
Cameran Castiel (hereinafter "the Castiels"). (Id. at 7-8.) Plaintiffs did not respond to this
motion. The Castiels subsequently moved the Court to cancel the lis pendens and order plaintiffs
to post $1,000,000 bond for damages caused by the allegedly frivolous filing on June 7, 2010.
([15] Mot. to Release and Cancel Lis Pena'ens (hereinafter "Mot. Cancel").) Plaintiffs did not
respond to this motion.
LEGAL STANDARD
'l`he plaintiffs must effect proper service of process on defendants within 120 days of
filing a complaint. FED. R. CIV. P. 4(m). The plaintiffs have the burden of proving proper
service. FED. R. CIV. P. 4(l). If they fail to serve a defendant within this time period, the Court
must either dismiss the case without prejudice as to that defendant or order that service be made
within a specified time. FED. R. CIV. P. 4(m). The Court may act either sua sponte or on motion
made by a party. Ia'. If the plaintiffs show good cause for their failure to effect proper service,
the Court must extend the time to serve for an appropriate period of time. Ia'. If the plaintiffs
seek a good cause time extension, they have the burden to show such cause. Id.; Strong-Fischer
v. Peters, 554 F. Supp. 2d 19, 23 (D.D.C. 2008).
ANALYSIS
A. fl_aintiffs’ Resnonse Is UntimelvLQWill Not Be Considered
1. Applicable Law
Parties must comply with Court orders or face possible sanction or dismissal. See FED. R.
CIV. P. 1 1(c), 41(b). This includes orders to act within a specified period of time. See FED. R.
C!V. P. 6(b). If a party fails to act timely on an order, the Court may exercise its discretion to
grant a time extension pursuant to Rule 6(b), which states in pertinent part:
When an act may or must be done within a specified time, the court may, for good
cause, extend the timer
(B) on motion made after the time has expired if the party failed to act
because of excusable neglect.
FED. R. CIV. P. 6(b). "Any post deadline extension must be upon motion made, and is
permissible only where the failure to meet the deadline was the result of excusable neglect."
Lujan v. Nat’l Wildlife F ed ’n, 497 U.S. 87l, 896 (l990) (emphasis in original) (internal
quotations omitted). "In the absence of any motion for an extension, the trial court ha[s] no basis
on which to exercise [this] discretion." Smith v. District of Columbia, 430 F.3d 450, 457 (D.C.
Cir. 2005). The Court may not consider an untimely act by a party without first granting an
extension of time. See z`a'. (reversing the lower court for granting an untimely motion without
first granting a proper extension of time).
2.
The Court ordered plaintiffs to file proof of timely service by March 22, 2010. (Order:
03/09/10.) Plaintiffs responded to this order on March 25th - three days later than ordered. To
date they have not asked the Court for an extension of time to respond to this order despite
having two distinct opportunities to do so. Although plaintiffs could have moved for an
extension in their late response, they did not do so. (See Pls.’ Resp.) Plaintiffs moved for an
extension of time to effect service on defendants, but this is not the same as a motion to extend
time to respond to the Court’s order. (See z'd. at 11 8.) Plaintiffs additionally could have moved
for an extension after receiving defendants’ motion to dismiss, as the issue of timeliness is front-
and-center in the defendants’ motion. (See Mot. Dismiss 2.) Again, plaintiffs did not do so.
Without a motion, the Court has no basis on which to grant a time extension. See Smith, 430
F.3d at 457. Both the Supreme Court and the D.C. Circuit Court have made it abundantly clear
that Rule 6(b) is to be read and applied strictly. See Lujan, 497 U.S. at 897; Smith, 430 F.3d at
457. Because it has no basis to extend the time to respond to its order, the Court will not
entertain plaintiffs’ untimely response. See Smz`th, 430 F.3d at 457.
B. Plaintiffs Have Failed to Prove Proper Service
1. Applicable Law
The plaintiffs have the burden of proving proper service or waiver thereof. FED. R. CIV.
P. 4(1)(1); see also Light v. Wolf 816 F.2d 746, 751 (D.C. Cir. l987) ("[T]he party on whose
behalf service is made has the burden of establishing its validity when challenged." (intemal
quotations and citation omitted)). The plaintiffs "must demonstrate that the procedure employed
satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision of
law." Light, 816 F.2d at 751 (intemal quotations and citation omitted). The Rule requires the
plaintiffs to serve a proper summons and a copy of the complaint on all defendants - delivered
by a person authorized to serve process and received by a person authorized to accept it for the
defendant - within the time restrictions of Rule 4(m). FED. R. CIV. P. 4(a)-(c), (e)-(j). Proof of
actual notice will not satisfy this requirement because "notice alone cannot cure an otherwise
defective service." See Whitehead v. CBS/Viacom, Inc., 221 F.R.D. 1, 4 (D.D.C. 2004) (intemal
quotations and citation omitted). Without valid service of summons or a waiver of service, the
Court carmot establish proper venue and personal jurisdiction over the defendants, and the case
may not proceed. See Omni Capital Int’l, Ltd. v. Rudolf Wollf& Co., Ltd., 484 U.S. 97, 104
(1987).
2.
The record contains no proof of proper service on any of the named defendants. Without
proof of proper service, plaintiffs cannot establish that they served any of the named defendants
within the 120-day limit of Rule 4(m). Although the three moving defendants admit that they
received a copy of a summons and the complaint within the 4(m) time period, (Mot. Dismiss 9, 1[
l), this only proves actual notice and not proper service. Compare (Mot. Dismiss 9, 11 l) with
FED. R. CIV. P. 4(a)-(c), (e)-(j). Proof of actual notice is insufficient to prove proper service. See
Whitehead, 221 F.R.D. at 4. lndeed, the three defendants obliquely challenge whether plaintiffs
have complied with Rule 4(c)(2). (See Mot. Dismiss 9, 11 1) ("Whether those persons [Who
served the defendants] qualify as process servers is unknown."). Plaintiffs have failed to
establish that any of the named defendants were served within 120 days of filing their complaint,
and this alone warrants dismissal under Rule 4(m).
Even if the Court considered plaintiffs’ response, they would still fail to prove proper
service. Plaintiffs alleged that they served four defendants, (Pls.’ Resp. 11 1), but they neglected
to attach affidavits of service attesting to the same. Allegations alone do not constitute proof of
service. See FED. R. CIV. P. 4(1). Plaintiffs’ brief therefore fails to establish proper service. See
Lz`ght, 816 F.2d at 751. Accordingly, plaintiffs would not sufficiently demonstrate timely service
under Rule 4(m) even if the Court accepted their late response.
C. §laintiffs Have Failed to Show GoodCause for Their Failure to Serve
1. Applicable Law
The Court must extend time for service by an appropriate period if the plaintiffs show
good cause for their failure to effect timely service. FED. R. C!V. P. 4(m). The plaintiffs bear the
burden of showing good cause if they seek a time extension. Id.; Str0ng-Fischer v. Peters, 554
F. Supp. 2d 19, 23 (D.D.C. 2008). "Mistake of counsel or ignorance of the rules of procedure
usually does not suffice to establish good cause." Whitehead, 221 F.R.D. at 3 (intemal
quotations and citation omitted).
2. Analysis
Plaintiffs make no showing of cause outside of their disallowed brief. The Court finds no
apparent reason for their failure to effect timely service, leading the Court to conclude that such
failure is the result of mistake of counsel or ignorance of the rules of procedure. Neither mistake
of counsel nor ignorance of the rules constitutes good cause. Whitehead, 221 F.R.D. at 3.
Without a satisfactory explanation as to why they have failed to serve the named defendants,
plaintiffs accordingly fail to carry their burden to prove good cause for a time extension. See
FED. R. CIV. P. 4(m); Strong-Fischer, 554 F. Supp. 2d at 23.
Even if the Court considered plaintiffs’ untimely response, it would still find that
plaintiffs have not carried their burden. Their brief contains several glaring omissions and
inconsistencies. First, plaintiffs state they have not served the nine "corporate defendants"
because these defendants are involved in the Ellipso bankruptcy and action in those proceedings
may settle all issues with those defendants, (Pls.’ Resp. 1}2.) lt is not clear, however, that any of
the "corporate defendants" are actually involved in the Ellipso bankruptcy.‘l (See In re: Ellipso,
Inc. , Docket.) Although it is possible that proof of the corporate defendants’ involvement is
buried somewhere within the gargantuan bankruptcy docket - which to date contains over 1,000
entries - plaintiffs have not brought such proof to the attention of the Court.
Second, plaintiffs claim that summonses have been issued for four defendants - James
Bailey, Michael Taylor, T.D. Ameritrade, Inc., and Bo Belinksy - and that those summonses are
out for service. (Pls.’ Resp. 1[6.) However, there is no evidence to support this contention. The
4 None of the "corporate defendants" are listed as parties to the bankruptcy. (See ln re: Ellipso,
Inc., Docket.) Defendants Ellipso Private Holdings, Virtual Geosatellite Holdings, Mobile
Communications Holdings, and Virtual GeoSatellite are listed as recipients of a notice of a
motion to convert Ellipso’s bankruptcy into a Chapter 7 liquidation, dated November 26, 2009.
(In re: Ellipso, Inc., [43 6] Cert. Mailing - Hearing.) However, this document appears to be
nothing more than a notice to potentially interested 3rd parties and does not compel any of the
recipients to appear. (See icl.) On December 3, 2009, the notices to these defendants were
retumed as undeliverable. (See In re: Ellipso, Inc., Docket.)
record contains a notice of summons issuance for only one of these defendants (J ames Bailey).
(See Docket.) This notice was recorded on May 5, 2010, over a month after plaintiffs told the
Court that these summonses were issued and out for service. Plaintiffs make no attempt to
explain this obvious inconsistency, leaving the Court to wonder whether it is due to clerical error
by the clerk’s office or deceit by plaintiffs.
Plaintiffs’ untimely response does little to convince the Court that they have good cause
for failing to prove service on the named defendants in this case. To the contrary, it convinces
the Court that plaintiffs have been careless at best or untruthful at worst. Even if the Court were
to consider their brief, the Court would still find no good cause to warrant a time extension in
this case. See FED. R. CIV. P. 4(m); Strong-Fischer, 554 F. Supp. 2d at 23.
D. Plaintiffs Fail to Persuade the Court to Grant a Discretionarv Ex¥tension
l. Applicable Law
While Rule 4(m) identifies when the Court must extend the time for service, the Rule
does not explicitly state when the Court may extend the time for service. The Court of Appeals
for the D.C. Circuit has no binding authority to guide the Court on this point. Upon its own
review, the Court will now find that Rule 4(m) allows and, in fact, requires a district court to
consider a discretionary extension of time absent a showing of good cause.
The Court finds support for this interpretation in both the text of the Rule and various
persuasive sources. Rule 4(m) states in pertinent part that:
lf a defendant is not served within 120 days after the complaint is filed, the court .
. . must dismiss the action without prejudice against that defendant or order that
service be made within a specified time. But if the plaintiff shows good cause for
the failure, the court must extend the time for service for an appropriate period.
FED. R. CIV. P. 4(m) (emphasis added). The emphasized portions of the first sentence grant the
Court general discretion to either dismiss a case or grant a time extension, qualified only the
requirement that the Court grant a time extension for good cause shown. See id. The notes of
Civil Rules Advisory Committee support this interpretation: " [Rule 4(m)] authorizes the court
to relieve a plaintiff of the consequences of an application of this subdivision even if there is no
good cause shown[.]" FED. R. CIV. P. 4(m), Notes of the Advisory Committee on the Rules
(1993). Additionally, a number of circuit courts similarly read the Rule to allow discretionary
time extensions. See, e.g., Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996); Coleman v.
Milwaukee Bd. of School Directors, 290 F.3d 932, 934 (7th Cir. 2002); Zapata v. City of New
York, 502 F.3d 192, 196 (2d Cir. 2007); Lep0ne-Dempsey v. Carroll Cntfy. Comm ’rs, 476 F.3d
1277, 1282 (11th Cir. 2007). The Court accordingly finds that it may grant a discretionary time
extension absent a showing of good cause.
The Court must consider a discretionary time extension as an alternative to dismissal
without prejudice. See FED. R. CIV. P. 4(m) ("[T]he court . . . must dismiss the action . . . or
order that service be made within a specified time.") (emphasis added). As with all other
provisions of Rule 4(m), the burden of persuading the Court to grant a discretionary time
extension falls on the plaintiffs See FED. R. CIV. P. 4(m). The plaintiffs need not show "good
cause," but they must still show some cause as to why the Court should not dismiss their case.
See id.; see also Coleman, 290 F.3d at 934 (stating that the judge must consider "any of the
factors urged upon him by the plaintijj" for exercising discretion in [his] favor . . . . " (emphasis
added)). Although no hard list of considerable factors exists, the advisory committee notes that
"[r]elief [from dismissal] may be justified, for example, if the applicable statute of limitations
would bar [the plaintiff s] refiled action." FED. R. C1V.P. 4(m), Notes of the Advisory
Committee on the Rules (1993); see also Lepone-Dempsey, 476 F.3d at 1282 (reversing the
district court for failure to consider the running of the statute of limitations, as pleaded by the
10
plaintiff`, before dismissing the case). The Court will therefore consider the effects of any
potential time bar as well as the duration of plaintiffs’ non-compliance with the Rule, and the pro
se status of two of the plaintiffs. The Court will consider each of these issues separately.
2.
a. Plaintiffs ’ Ability to Refile
Plaintiffs claim that they filed this complaint "inter alia, because of statute of limitations
considerations." (Pls.’ Resp. 11 7.) Although the substance of plaintiffs’ untimely brief may not
be considered, the Court notes that plaintiffs potentially face a time bar to refiling all or part of
this case. While the Court considers plaintiffs’ ability to refile a major factor in its calculus, the
existence, or potential existence, of a time bar does not automatically warrant a discretionary
extension of time. See FED. R. CIV. P. 4(m), Notes of the Advisory Committee on the Rules
("Relief may be justified . . . . " (emphasis added)); see also Lepone-Dempsey, 476 F.3d at 1282
("[T]he running of the statute of limitations . . . does not require that the district court extend
time[.]"). Plaintiffs must persuade the Court that relief is warranted in this case based upon the
facts presented. See FED. R. CIV. P. 4(m). They fail to do so.
Plaintiffs do not clarify which - if any - of their numerous claims would be time barred if
they were forced to refile. They fail to point the Court to the statutes or laws that govem time
limitations on their 28 claims and fail to plead facts to establish when the statutory clock began
to run on the 30 named defendants, Indeed, the only piece of information presented to the Court
is a single sentence in their untimely brief that states that there are "statute of limitations
considerations." (Pls’ Resp. 1[7.) This simply does not provide enough information to gauge the
legitimacy of such a claim. Courts determine whether to grant a discretionary time extension
based upon "the factors urged upon [it] by the p1aintiff." See C0leman, 290 F.3d at 934.
ll
Although Rule 4(m) requires the Court to examine the "factors urged upon it," plaintiffs must
bring those factors to the attention of the Court before it will consider them as grounds for a
discretionary time extension. See FED. R. CIV. P. 4(m); see also Thompson, 91 F.3d at 21
(denying the plaintiff s appeal because he did not present his argument for a discretionary time
extension to the district couit). Plaintiffs do not establish that their case will be time barred,
much less that the facts of this case warrant a time extension. The Court does not find adequate
reason to grant a discretionary time extension on this ground.
b. Duration of Plaintijj’s ’ Non-Compliance
Plaintiffs have known of the service deficiencies in their case for some time. Defendants
first alerted plaintiffs to their non-compliance with Rule 4 on February 12, 2010 - over five
months ago. (See Mot. Stay, 3.) The Court put plaintiffs on notice of their potential dismissal
over four months ago. (See Order: 03/09/10.) Again, defendants raised plaintiffs’ continued
non-compliance with Rule 4(m) - along with the deficiencies in plaintiffs’ response to the
Court’s order - three months ago in their motion of April 7, 2010. (See Mot. Dismiss.) Despite
ample notice and opportunity, plaintiffs have failed to remedy their behavior. Plaintiffs did not
even bother to respond to the latest motions filed against them, a dispositive oversight in itself.
See D.D.C. LCvR 7(b) (If the opposing party does not respond to a motion against them within
14 days, "the Court may treat the motion as conceded."). As a whole the record shows that
plaintiffs have done little to save their case from an end that they should have seen coming for
months. Based on this, the Court has no reason to believe that this case would benefit from a
time extension.
c. Pro Se Status of Two Plaintiffs
12
As noted earlier, plaintiffs John Mann and Robert Patterson participate in this case pro se.
The Court typically affords pro se litigants more latitude to correct defects in service of process.
Moore v. Agency for Int’l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993). However, this latitude is not
without limit. As the D.C. Circuit noted in Moore, the purpose of showing leniency to pro se
litigants is to "supply minimal notice of the consequences of not complying with the procedural
rules." See 994 F.2d at 876. The Court did this almost five months ago in its order of March 9,
2010. (See Order: 03/09/10.) The order identified the provision of law with which plaintiffs
had not complied, notified them that they faced dismissal for their inaction, and gave them two
options to rectify their behavior. (Id.) While the Court did not provide plaintiffs with
comprehensive instruction on how to bring themselves into compliance, "[d]istrict courts do not
need to provide detailed guidance to pro se litigants[.]" See Moore, 994 F.2d at 876. The Court
has provided the pro se litigants ample latitude to correct the service deficiencies in their case,
and they are not entitled to any fiirther leniency.
The Court further notes that plaintiffs Mann and Patterson may not be typical,
unsophisticated pro se litigants. Both are businessmen who have actively participated as pro se
creditors in the Ellipso bankruptcy for months. (See In re: Ellipso, Inc., Docket.) Additionally,
Marm and Patterson filed this suit and all correspondence herein jointly with plaintiffs Marm
Technologies, LLC, and The Registry Solutions Company, both of whom are represented by
counsel. Defendants allege that both companies are co-owned by Patterson and Marm. (Mot.
Dismiss 4.) Defendants further claim that Patterson, although technically a pro se litigant, has
formal legal training. (Ia'.) Plaintiffs have not contested either allegation. The record as a whole
does not convince the Court that plaintiffs have failed to comply with the Rules of Civil
Procedure due to Marm’ and Patterson’s pro se status. Accordingly, the Court is not persuaded
13
that plaintiffs merit any further latitude on this issue and finds no reason to grant a discretionary
time extension on this ground.
The record as a whole persuades the Court that no further extension of time is warranted
in this case. Plaintiffs have failed to establish that they will be barred from refiling this case,
they have been given ample notice of their non-compliance with Rule 4(m), and the fact that two
plaintiffs appear pro se is of no moment in this case. The Court will not to extend time to serve
any further and will dismiss this case without prejudice pursuant to Rule 4(m). Pursuant to DC
Code § 42-l207(d), the Court will further order the release of the lis pendens on defendants
David and Cameran Castiels’ real property.
DEFENDANT’S REMAINING MOTIONS
A. Motion to Stay or Alternativelv to Ei_rtend Time
Defendants request that the Court stay these proceedings or altematively to extend the
time to file an answer. (Mot. Stay. 1.) The pending dismissal of plaintiffs’ case obviates the
need to address either issue. The Court will deny both requests as moot.
B. Motiol_i to Cancel the Lis Pendens
Defendants David and Cameran Castiel move to cancel the lis pendens on their residence.
(Mot. Cancel 1.) The Castiels claim that their home has no nexus to this case and that plaintiffs
recorded the document in order to cloud the title to their property, derail a plarmed sale, and
frustrate the Ellipso bankruptcy proceedings. (ld at 4, 6.) While the pending dismissal of this
case will grant the Castiels the same relief that they seek through this motion - that is it will
allow them to quash the lis pendens and clear the title to their property - they cannot use the
Court’s decision to release the lis pendens until the appeals process plays out. See DC Code §
42-1207(d). Their motion therefore presents a controversy that is still real as opposed to moot.
14
However, adjudication of their motion will not lead to faster or more comprehensive relief than
that offered by dismissal and is therefore not ripe for adjudication at this time.
"The ripeness doctrine is a justiciability doctrine ‘drawn both from Article 111 limitations
on judicial power and from prudential reasons for refusing to exercise jurisdiction."’ National
Park Hospitality Ass'n v. Dep 't of the Interior, 538 U.S. 803, 807-08 (2003) (quoting Reno v.
Catholic Soc. Servs., 509 U.S. 43, 57 n. 18 (1993)). Even in a case that "rais[es] only prudential
concerns, the question of ripeness may be considered on a court's own motion." Id. at 808. In
determining whether an issue is ripe for review, the Court applies a two part test to analyze: 1)
the fitness of the issues for judicial decision; and 2) the hardship to the parties of withholding
court consideration. National Treasury Employees Union v. United States, 101 F.3d 1423, 1431
(D.C. Cir. 1996). The Court also considers the basic policy rationale behind the ripeness
doctrines "Article 111 courts should not make decisions unless they have to." See id.
These three factors persuade the Court that this motion is prudentially unripe.
Addressing them in reverse order, the Court first finds that there is no apparent need to decide
the Castiels’ motion at this time. The Court sees no present advantage to adjudicating the
motion, since dismissal of the underlying case will give the Castiels the relief they seek. See DC
Code 42-1207(d). The motion will become moot upon final judgment against plaintiffs in this
case. Second, the Castiels will suffer no hardship by the Court’s refusal to consider the motion.
While appeal of the Court’s decision would prevent immediate release of the lis pendens,
adjudication of this motion will not offer the Castiels quicker relief since appeal would also
prevent the immediate enforcement of such adjudication. The Court recognizes that the Castiels
may suffer hardship by a delay in the termination of the lis pendens, (see Mot. Cancel 9), but
they would have to endure this hardship regardless of the Court’s action on their motion to
15
cancel. Finally, the Court has serious concems about the fitness of this issue for federal judicial
review. The relevant section of the D.C. Code that would allow the Court to cancel the lis
pendens came into force on May 27, 2010. See Lis Pendens Amendment Act of 2010, DC Law
18-180, 18th Council Sess. (creating DC Code §42-1207(h)). The D.C. courts have not had
ample opportunity to test this section and many of its ambiguous provisions remain undefined.
See DC Code § 42-1207(h). Any action that the Court took on this matter would require it to
speculate on D.C. law. Considering the pending mootness of the motion, the absence of
additional hardship to the Castiels, and the ambiguity in the applicable law, the Court will deny
the motion as prudentially unripe.
C. Motion to Order Plaintiffs to Post Bond
The Castiels additionally move the Court to order plaintiffs to post a bond of $1,000,000
"for the damages they have caused and continue to cause by the unlawful recording of [the] lis
pena'ens." (Mot. Cancel 1.) The Court understands the Castiels to move for a bond order
notwithstanding the dismissal of the above-captioned case, as D.C. Code § 42-1207(d) prevents
them from recording the Court’s forthcoming order until it becomes final. (See Mot. Cancel 8-
9.) The Castiels argue that "there is a strong likelihood that [their] damages may continue"
pending finality in this case, which "further warrant[s] the posting of a bond by plaintiffs at this
time." (Mot. Cancel 9.) However, the Castiels fail to identify a legal ground on which the Court
can offer relief`, and the Court is unaware of any law that would permit the posting of such a
bond.
The Court finds no basis in the text of D.C. Code § 42-1207 or the common law of the
District of Columbia to order the posting of a bond on the lis pendens. Similarly, the Court
cannot treat the lis pendens as an injunction against the sale of the property and order plaintiffs to
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post a security bond under Rule 65(c) of the Federal Rules of Civil Procedure. As noted by the
District of Columbia Court of Appeals, the common law doctrine of lis pendens does not bar the
sale or transfer of the encumbered property. 1stAtlantic Guar. Corp. v. Tillerson, 916 A.2d 153,
156-57 (D.C. 2007). A lis pendens is therefore not an injunction, which by definition is "[a]
court order commanding or preventing an action." BLACK’S LAW DICTIONARY 855 (9th ed.
2009); see also 51 AM. JUR. 2d Lis Pendens § 1 (West 2010) ("However, it [a lis pendens] is not
the equivalent of an injunction, as it does not formally restrain the sale, conveyance, or purchase
of the property.") Without a sufficient legal basis, the Court will not order plaintiffs to post a
bond on the lis pendens and will therefore deny the Castiels’ motion.
CONCLUSION
For the reasons set forth above, defendants’ motion to reject plaintiffs’ response and
dismiss shall be GRANTED and this case will be DISMISSED without prejudice. Defendants’
motion for stay or altematively to extend time to file an answer shall be DENIED. Defendants
David and Cameran Castiels’ motion to cancel the lis pendens on their property and motion to
order plaintiffs to post a bond on the lis pendens shall both be DENIED.
A separate order shall issue this date.
D §%?//o E,C.
RoY“CE c. LAMBERTH
Chief Judge
United States District Court