Ewing v. Hurricane Tax, LLC

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTON EWING, an individual, Case No.: 3:19-cv-2328 JLS (KSC)

12 Plaintiff, ORDER STRIKING PLAINTIFF’S 13 v. REQUEST FOR JUDICIAL NOTICE 14 HURRICANE TAX GROUP, LLC, et al., 15 Defendants. 16 17 19 On December 6, 2019, Plaintiff Anton Ewing sued Hurricane Tax, LLC and Deepak 20 Parwatikar (collectively, “Defendants”) for violations of the Telephone Consumer 21 Protection Act, 47 U.S.C. § 277 et seq., and California’s Invasion of Privacy Act, Cal. 22 Penal Code § 632 et seq. See Doc. No. 1 at 19-22. As previously detailed by the Court, 23 the course of the litigation has required frequent admonitions from the Court to the parties 24 and their counsel to conduct themselves with civility and professionalism. See Doc. No. 25 25 at 1-2. The Court recently ordered Mr. Ewing and Defendants’ counsel to read and 26 abide by this District’s Civil Local Rules 2.1 (Professionalism) and 83.9 (Correspondence 27 and Communications with Chambers) as well as the meet-and-confer requirements of Civil 28 /// 1 Local Rule 26.1 and the undersigned’s Chambers Rules. See id. at 2. At the same time, 2 the Court scheduled a Settlement Conference and stayed all discovery pending the outcome 3 of these settlement discussions “with the parties’ agreement.” Id. 4 On May 26, 2020, the parties reached an agreement to settle the litigation. See Doc. 5 No. 29. Thereafter, the parties were to file a joint motion for dismissal. Id. Instead, on 6 May 27, 2020, Mr. Ewing filed a Request for Judicial Notice. Doc. No. 30. Mr. Ewing 7 requests the Court take notice of records of proceedings before the State Bar of California 8 involving Mr. Parwatikar or his counsel; draft discovery responses Mr. Ewing received 9 from Defendants’ counsel in this matter; and a Memorandum Opinion and Order from a 10 matter pending in the District of New Mexico in which Mr. Parwatikar and his counsel 11 were parties. Id. at 6-130. None of these materials were requested by the Court. See 12 Optinrealbig.com, LLC v. Ironport Systems, Inc., 323 F. Supp. 2d 1037, 1039 (N.D. Cal. 13 2004) (observing, where party submitted supplemental briefing after oral argument, that 14 “[s]uch uninvited submissions are inappropriate and violate the notions of fairness that 15 underlie the judicial process”). 16 Pursuant to Federal Rule of Evidence 201, the Court may take judicial notice of facts 17 that “[are] generally known within [its] territorial jurisdiction” or “can be accurately and 18 readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. 19 R. Evid. 201(b)(1) and (2). The Court questions whether some of the material submitted 20 by Mr. Ewing falls within the scope of this Rule. Even assuming these documents (and the 21 facts related therein) are properly the subject of judicial notice, Mr. Ewing did not identify 22 (nor can the Court discern) any pending matter to which they are relevant. See Kuzmenko 23 24 25 1 In an unrelated case, the Chief Judge of this District ordered Mr. Ewing “to be courteous and civil in all communications with opposing counsel, parties, and third parties and to 26 refrain from disparaging their intelligence, ethics, or behavior,” including “making 27 accusations for improper purposes (such as to harass, delay, or embarrass) …” See Anton Ewing v. Oasis Media, LLC, Case No. 3:18-cv-01455-LAB-MSB, Doc. No. 82 at 2 (May 28 1 v. Lynch, 606 F. App’x 399 (9th Cir. 2015) (finding that “judicial notice is inappropriate 2 where the facts to be noticed are not relevant to the disposition of the issues before the 3 court”) (citing Ruiz v. City of Santa Maria, 160 F. 3d 543, 548 n. 13 (9th Cir. 1998)); see 4 also Jose v. Select Portfolio Servicing, LLC, 2016 WL 4581394 at *3 (S.D. Cal. Aug. 8, 5 2016) (denying request for judicial notice where information was “irrelevant to the matters 6 before the Court”); accord U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, 7 Inc., 971 F.2d 244, 248 (9th Cir. 1992) (noting that court “may take notice of proceedings 8 in other courts, both within and without the federal judicial system, if those proceedings 9 have a direct relation to matters at issue”) (emphasis added). Instead, the Request for 10 Judicial Notice appears to have been filed solely to embarrass or harass Defendants and 11 their counsel, in violation of this Court’s prior order. See Doc. No. 25. 12 This Court has the “inherent power to control [its] docket,” including the authority 13 “to strike items from the docket as a sanction for litigation conduct” or to address 14 procedural improprieties. Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th 15 Cir. 2010). See also Rainone v. Paz, 2019 WL 8014257 at *3 (C.D. Cal. Aug. 27, 2019) 16 (recognizing the court’s inherent power includes the “discretion to strike an improperly 17 filed document to control the ‘orderly and expeditious disposition of cases’”) (citing Dietz 18 v. Bouldin, ___ U.S. ___, 136 S. Ct. 1885, 1891 (2016)); Picozzi v. Clark Cty. Detention 19 Ctr., 2018 WL 3866399 at *1 (D. Nev. Aug. 13, 2018) (removing records from the docket 20 where party gave “no explanation” for their filing); Castaneda v. CDCR, 2018 WL 21 3436890 at *2 (S.D. Cal. July 17, 2018) (noting that a court may strike items from its 22 docket sua sponte in the exercise of its inherent powers). “Such power is indispensable to 23 the court’s ability to enforce its orders, manage its docket, and regulate insubordinate 24 attorney conduct.” Adobe Sys. Inc. v. Christenson, 891 F. Supp. 2d 1194, 1201 (D. Nev. 25 2012). 26 Therefore, in the exercise of its inherent powers, and finding Mr. Ewing’s 27 unsolicited filing is irrelevant to any pending matter and serves an improper purpose, the 28 Court hereby STRIKES the Request for Judicial Notice. The Clerk of the Court is 1 |/instructed to remove Document No. 30, including all related exhibits, from the Court’s 2 || docket. 3 IT IS SO ORDERED. 4 ||Dated: June 3, 2020 Nitin 5 Mficae 6 Hori. Karen S. Crawford , United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28