Assemi v. Assemi ( 2024 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 KEVIN ASSEMI, Case No. 1:23-cv-01741-EPG 11 Plaintiff, ORDER VACATING MAY 31, 2024 HEARING 12 v. (ECF No. 58) 13 FARID ASSEMI, et al., ORDER DIRECTING CLERK OF COURT TO 14 Defendants. TERMINATE DEFENDANTS’ MOTION TO DISMISS AS MOOT 15 (ECF No. 31) 16 ORDER DIRECTING PLAINTIFF TO FILE 17 THE WITHDRAWAL AND TERMINATION OF LIS PENDENS, THE PARTIES TO 18 CONFER IN GOOD FAITH, AND DEFENDANT MARICOPA TO FILE A 19 SUPPLEMENT ADDRESSING WHETHER MOTION TO EXPUNGE LIS PENDENS IS 20 MOOT 21 (ECF No. 33) 22 Defendants removed this case from state court on December 19, 2023. (ECF No. 1). On 23 March 6, 2024, Plaintiff filed a first amended complaint alleging 31 counts, including fraud, 24 breach of contract, and negligence claims. (ECF No. 26). Thereafter, the parties filed five 25 motions—(1) a motion to dismiss (ECF No. 31); (2) motion to expunge lis pendens (ECF No. 26 33); (3) motion to set aside default (ECF No. 36); (4) motion to amend counterclaim (ECF No. 27 52); and (5) motion to rejoin as counterclaim Plaintiffs (ECF No. 53)— which are now pending 28 1 before the Court. 2 For the reasons explained below, the Court will (1) vacate the May 31, 2024 hearing that 3 was set for some of the pending motions; (2) direct the Clerk of Court to terminate Defendants’ 4 motion to dismiss as moot; and (3) order Plaintiff to file the withdrawal and termination of lis pendens, the parties to confer in good faith about the status of the motion to expunge lis pendens, 5 and if after conferring in good faith Defendant Maricopa believes the motion to expunge lis 6 pendens is not moot, it shall file a supplemental filing justifying its position. 7 I. MAY 31, 2024 HEARING 8 Four of the pending motions (motion to dismiss; motion to expunge lis pendens; motion to 9 amend counterclaim; and motion to rejoin as counterclaim Plaintiffs) have a hearing set for May 10 31, 2024, at 10 a.m. (ECF Nos. 31, 33, 52, 53). Upon review, the Court concludes that a hearing 11 on these motions is not necessary; rather, the Court will issue a decision on the briefs submitted.1 12 Accordingly, the Court will vacate the May 31, 2024 hearing. 13 II. MOTION TO DISMISS 14 Defendants moved to dismiss certain claims on March 22, 2024. (ECF No. 31). However, 15 on April 15, 2024, Plaintiff filed a notice of voluntary dismissal under Federal Rule of Civil 16 Procedure 41(a)(1)(A)(i), which permits a plaintiff to dismiss an action without a court order by 17 filing “a notice of dismissal before the opposing party serves either an answer or a motion for 18 summary judgment.” (ECF No. 48). 19 Under Rule 41(a)(1), a plaintiff has an absolute right voluntarily to dismiss his action prior to service by the defendant of an answer or a motion for summary 20 judgment. Even if the defendant has filed a motion to dismiss, the plaintiff may terminate his action voluntarily by filing a notice of dismissal under Rule 41(a)(1). 21 Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (internal citation omitted). 22 Accordingly, as Plaintiff has no pending claims in this case, Defendants’ motion to 23 dismiss has been rendered moot, and the Court will direct the Clerk of Court to terminate the 24 motion as no longer pending.2 25 1 As noted in the minute order entered on March 4, 2024, “All parties have consented to the jurisdiction of 26 a United States Magistrate Judge for all further proceedings in this action, including trial and entry of judgment, pursuant to 28 U.S.C. 636(c)(1).” (ECF No. 25). 27 2 Two of the Defendants—Elevated Ag, LLC and Maricopa—filed a response to Plaintiff’s supplemental brief in support of his motion to set aside default. (ECF No. 54). In this filing, they agree with Plaintiff that 28 the motion to dismiss is moot in light of Plaintiff’s notice of voluntarily dismissal, although they argue that 1 2 III. SUPPLEMENTAL BRIEFING ON MOTION TO EXPUNGE LIS PENDENS 3 Defendant Maricopa filed a motion on March 22, 2024, requesting “an order expunging 4 the lis pendens wrongfully recorded by Plaintiff Kevin Assemi with the Kern County Assessor- Recorder as to five properties, Assessor Parcel Numbers 220-050-49, 220-050-12, 220-050-69, 5 200-050-71, and 220-211-24.” (ECF No. 33). In its April 26, 2024 response to Plaintiff’s 6 supplemental brief in support of his motion to set aside default, Maricopa states as follows: 7 On April 25, 2024 (the day before the instant brief was due to be filed), Kevin 8 Assemi’s counsel represented that a document styled “Withdrawal and Termination of Lis Pendens” had been sent off for recording. We have not seen a 9 signed version of the document, nor do we know if it has been recorded. But in 10 any event, the unsigned draft that Kevin Assemi’s counsel provided, attached as Exhibit A, fails to moot the issue. First, it does not identify the Properties, so its 11 filing may be insufficient to undo the damaging effect of the lis pendens— clouding title and rendering the Properties unmarketable. Kirkeby v. Superior Ct., 12 33 Cal. 4th 642, 647 (2004). Second, it threatens to create further confusion, because it is submitted on behalf of Kevin Assemi and Elevated, whereas the lis 13 pendens was recorded by Kevin Assemi alone (individually and 14 purportedly derivatively on behalf of Elevated, but not by Elevated). ECF 9 at 5. Third, it purports to be signed by Kevin Assemi on behalf of Elevated. But Kevin 15 Assemi was removed as a manager of Elevated on December 28, 2022. ECF 26 at 82. Kevin Assemi has no authority to act for Elevated. 16 (ECF No. 54, pp. 3-4). 17 The same day that this response was filed, Plaintiff’s counsel responded to an email sent 18 by defense counsel to the Court providing a proposed order granting the motion to expunge lis 19 pendens. This email attached a document titled Withdrawal and Termination of Lis Pendens and 20 stated, in part: “Please find attached the recorded notice of withdrawal of lis pendens. This was 21 recorded 20 mins ago.” However, the attached document was not filed of record. 22 After this email, it is unclear whether the parties have had further discussions regarding 23 the motion to expunge lis pendens and whether it is possibly moot. Accordingly, the Court will 24 order (1) Plaintiff to file the withdrawal and termination of lis pendens on the record, (2) the 25 parties to confer in good faith whether the motion to expunge lis pendens is moot or may be 26 rendered moot through agreement, and (3) if after conferring in good faith Defendant Maricopa 27 believes that the motion to expunge lis pendens is not moot, it shall file a supplemental filing 28 their counterclaims may proceed, which issue will be addressed in a later order. (Id. at 2). 1 | justifying its position. 2 IV. ORDER 3 For the reasons given above, IT IS ORDERED as follows: 4 1. The May 31, 2024 hearing is vacated. 5 2. The Clerk of Court shall terminate Defendants’ motion to dismiss (ECF No. 31) as moot. 6 3. By no later than May 30, 2024, Plaintiff shall file the withdrawal and termination of lis 7 pendens that was emailed to the Court. The parties shall meet by no later than May 30, 8 2024 and confer in good faith about whether the motion to expunge lis pendens is moot or 9 may be rendered moot through agreement. If after conferring in good faith Defendant Maricopa believes the motion to expunge lis pendens is not moot, it shall file a supplemental filing justifying its position by no later than June 10, 2024. ? 12 | ITIS ORDERED. Dated: May 20, 2024 [Jee ey 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 || ———— 3 Plaintiff is also permitted, but is not required, to file a brief explaining why this document moots the 28 | motion to expunge lis pendens.