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Porter v. Chetal

United States District Court, D. Nevada

March 1, 2017

MARIAN K. PORTER, Plaintiff,
v.
SHYAM K. CHETAL, individually and d/b/a ADVANTAGE REAL ESTATE PRO; UNITED CAPITAL INVESTMENT, INC. d/b/a NEVADA UNITED CAPITAL INVESTMENTS, INC.; SMARTTOUCH SYSTEMS, INC.; and DOES 1 through 30, inclusive, Defendants.

          ORDER

          LARRY R. HICKS, UNITED STATES DISTRICT JUDGE

         Before the court is plaintiff Marian Porter's motion for entry of judgment. ECF No. 100. Defendants Shyam K. Chetal and United Capital Investments, Inc. (“United”) have failed to respond.

         I. Background

         The parties are aware of the factual background of this case, which the court discussed in its last order. See ECF No. 95. In August of 2014, Porter moved for summary judgment against all defendants, which the court granted only on her breach-of-contract claim against Chetal and United[1] but denied on all other claims. ECF Nos. 39, 44. After the court notified Porter that it intended to dismiss this action for want of prosecution (ECF No. 93), she timely filed a motion to voluntarily dismiss her remaining claims (ECF No. 94), which the court granted (ECF No. 95). Because the court's grant of partial summary judgment on Porter's contract claim only addressed liability and did not reach the issue of damages, the court ordered Porter, Chetal, and United to submit a proposed joint pretrial order on this sole remaining issue. ECF No. 95 at 5.

         After none of the parties submitted the proposed order, the court ordered them to attend a telephonic status conference on February 8, 2017. ECF No. 97. Due to the fact that several court orders mailed to Chetal had been returned as undeliverable, the court also ordered plaintiffs counsel to make a good-faith attempt to ascertain the availability and address of Chetal and to provide him with a copy of the status-conference order. Id.

         Neither Chetal nor any other representative for himself or United appeared at the status conference. ECF No. 99. The court therefore ordered Porter to move for entry of judgment no later than February 18, 2017, and to again make a good-faith attempt to locate Chetal and serve him with her motion. Id. The court set February 28, 2017, as the deadline for Chetal's reply. Id.

         Porter timely filed the instant motion (ECF No. 100) and also filed a certificate of service, attesting to having served Chetal at his last known address (ECF No. 102). Chetal has failed to reply to Porter's motion.

         II. Discussion

         Porter has moved for entry of judgment pursuant to Federal Rule of Civil Procedure 54(a) and (b). After examining Porter's points and authorities and conducting its own research, the court has concluded that Rule 54 is an inappropriate procedural mechanism under these circumstances; the court never granted summary judgment on damages for the breach-of-contract claim, which, as stated in the court's last order, was the only remaining issue for trial. Therefore, the court cannot currently enter judgment on damages.

         Instead, the court is giving defendants Chetal and United notice of its intent to sua sponte enter summary judgment in favor of Porter and against them. See Fed. R. Civ. P. 56(f). Chetal and Porter have 21 days from the date of this order to show cause as to why the court should not grant Porter summary judgment on damages on her breach-of-contract claim in the amount of two-hundred million dollars ($200, 000, 000.00).

         The court intends to enter summary judgment based on the following undisputed facts:

• The contract price for the mining rights at issue was $220, 000, 000.00.
• As part of thi s contract, Chetal and United were to pay the Bureau of Land Management $276, 480.00 in licensing fees by September 3, 2013.
• Chetal and United breached this contract when Chetal's check for the licensing fees was rejected twice due to insufficient funds, resulting in ...

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