Cotton v. Geraci ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARRYL COTTON, Case No.: 18cv325-BAS (MDD) 12 Plaintiff, ORDER 13 v. (1) GRANTING PLAINTIFF’S EX 14 LARRY GERACI, et al., PARTE APPLICATION TO LIFT 15 THE STAY IN THE CASE; (2) Defendants. DIRECTING U.S. MARSHALL TO 16 EFFECT SERVICE; AND 17 (3) DENYING PLAINTIFF’S REQUEST FOR INJUNCTIVE 18 RELIEF 19 [ECF No. 8.] 20 21 22 Currently pending before the Court is Plaintiff Darryl Cotton’s ex parte application, 23 wherein he seeks an order lifting the stay in the case, appointment of counsel1 and 24 injunctive relief. (ECF No. 8.) In the application, he complains of the “fraud” in the state 25 26 27 1 While Plaintiff states he seeks appointment of counsel in the caption of his application, he does not provide any reason or legal authority to support his request. Accordingly, the Court declines to consider 28 1 court case and challenges the “sound legal judgement (sic)” of Judge Wohlfeil, and the 2 “sham trial.” (Id. at 2, 3.) 3 On February 9, 2018, Plaintiff, proceeding pro se, filed a complaint alleging breach 4 of contract against Defendant Larry Geraci (“Geraci”) for the purchase and sale of 5 Plaintiff’s real property which qualifies for a Conditional Use Permit for a Medical 6 Marijuana Consumer Collective. (“Compl.,” ECF No. 1.) Cotton names defendants 7 involved in the transaction and alleges seventeen causes of action arising from the breach. 8 A year before the filing of the complaint in this Court, on March 21, 2017, Geraci filed a 9 complaint against Cotton in San Diego Superior Court alleging breach of contract and 10 related claims for the purchase and sale of Cotton’s real property. (ECF No. 3-11 (state 11 court complaint).) On February 28, 2019, the Court granted Plaintiff’s motion to proceed 12 in forma pauperis and sua sponte stayed the case under the Colorado River doctrine, due 13 to the related pending state court case involving the same facts and issues. (ECF No. 7); 14 see Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). 15 It is not clear from Plaintiff’s papers whether the state case has been completed. 16 Based on the Court’s review of the state court’s Register of Actions Notice in the Superior 17 Court of California, County of San Diego, Court of Appeal, and California Supreme Court, 18 it appears that the state case is completed. After a jury trial, judgment was entered in favor 19 of Geraci and against Plaintiff. Geraci v. Cotton, Case No. 37-2017-00010073-CU-BCD- 20 CTL, Register of Actions Nos. 646, 694. Accordingly, based on this understanding, the 21 Court LIFTS the stay in this case. Further, because the Court granted Plaintiff’s motion 22 to proceed IFP on February 28, 2019, 23 1. The Clerk of Court is DIRECTED to issue a summons with respect to 24 Plaintiff’s Complaint, ECF No. 1. The Clerk should then provide Plaintiff with the 25 summons. When sending the summons to Plaintiff, the Clerk should include with the 26 summons: (a) a blank U.S. Marshal Form 285; (b) another letter instructing Plaintiff on 27 how to complete this Form 285; (c) a certified copy of this Order; (d) a certified copy of 28 the Order granting Plaintiff’s motion to proceed in forma pauperis, ECF No. 7; and (e) a 1 certified copy of the Complaint, ECF No. 1. Together, the summons and additional 2 documents are Plaintiff’s “IFP Package.” 3 3. Plaintiff is DIRECTED to complete the following actions to aid the U.S. 4 Marshal in serving his Complaint: 5 a. First, upon receiving the IFP Package, Plaintiff must complete the IFP 6 package, including the U.S. Marshal Form 285, as accurately as possible. 7 b. Second, Plaintiff must return the completed IFP package and Form 285 8 to the U.S. Marshal according to the instructions provided by the Clerk’s 9 letter. 10 c. Third, Plaintiff must include on the Form 285 addresses where the U.S. 11 Marshal can serve Defendants. See S.D. Cal. Civ L.R. 4.1.c. 12 4. Plaintiff is FURTHER DIRECTED to complete the following actions for all 13 of his future filings in this case: 14 a. Plaintiff must serve upon Defendants a copy of every pleading or 15 document that Plaintiff files with the Court in this case. 16 b. For every future filing with the Court in his case, Plaintiff must include 17 a certificate of service which states: 18 i. How he served a true and correct copy of that filing on 19 Defendants, and 20 ii. The date when Defendants were served. 21 c. Any paper received by the Court which has not been properly filed with 22 the Clerk, or which fails to include a Certificate of Service, may be 23 disregarded. 24 5. Upon receipt, the U.S. Marshal is ORDERED to serve a copy of the 25 complaint and summons upon Defendants as directed by Plaintiff on his completed U.S. 26 Marshal Form 285. All costs of service will be advanced by the United States. See 28 27 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 28 1 In his ex parte application, Plaintiff also seeks injunctive relief enjoining the state 2 || action,” enjoining further development of the Marijuana Outlet as it is within 1,000 feet of 3 || two daycares in violation of the law, and issuing a subpoena for attorney Nguyen to present 4 ||herself at the TRO hearing and explain why she should not be sanctioned for failing to 5 || provide the testimony of Corina Young, her client.*> (ECF No. 8, at 18-19.) The Ninth 6 || Circuit has held that “there must be a relationship between the injury claimed in the motion 7 || for injunctive relief and the conduct asserted in the underlying complaint.” Pac. Radiation 8 || Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015) (“Absent that 9 || relationship or nexus, the district court lacks authority to grant the relief requested.”). Here, 10 || the allegations in the ex parte application post-date the allegations in the original complaint 11 || filed on February 9, 2018. There is no nexus between the allegations in the complaint and 12 injuries claimed in the TRO application. See id.; Panno v. Wells Fargo Bank, N.A., 13 No. SA CV 16-118-DOC(KESx), 2016 WL 7494896, at *3 (C.D. Cal. June 13, 2016) 14 || (noting the plaintiff's lack of clarity on this critical issue as the TRO alleged violations of 15 || California Civil Code section 2923.6 which was not pleaded in the second amended 16 ||complaint). Accordingly, the Court DENIES Plaintiff's request for injunctive relief. 17 IT IS SO ORDERED. 18 19 || DATED: January 15, 2020 / . Ly 20 Cupid (Higha 6 71 Usited Minter District Judge 22 23 24 25 26 27 28 : It appears Plaintiff is seeking to enjoin the judgment in the state court case. It is unclear who Nguyen and Young are and how they are related in this matter.