United States District Court, D. Nevada
MARIAN K. PORTER, Plaintiff,
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.
R. HICKS UNITED STATES DISTRICT JUDGE.
last order, the court notified defendants Shyam K. Chetal and
United Capital Investments, Inc. (“United”) of
its intent to grant plaintiff Marian K. Porter summary
judgment on damages on her breach-of-contract claim in the
amount of two-hundred million dollars ($200, 000, 000.00).
ECF No. 104. The court also ordered Defendants to show cause
within 21 days of its order why it should not grant Porter
this relief. Id. Defendants have failed to respond,
and the undisputed facts demonstrate that Porter suffered
damages of at least two-hundred million dollars, which she
was unable to mitigate due to the loss of her mining rights.
The court will therefore grant summary judgment on damages
and direct the clerk of court to enter judgment.
a contract dispute in a diversity case in which Porter
alleges that Chetal was involved in a fraudulent financing
scheme with defendants Smarttouch Systems, Inc.
(“SSI”), and United Capital Investments, Inc.
(“United”). See ECF No. 1. Porter and her
husband purchased the land at issue from the Bureau of Land
Management (“BLM”) in 1986 and paid yearly annual
license fees of $15, 000 for twenty-six years. ECF No. 39 at
2. Following the death of Porter's husband, and due to
other financial hardships, she was forced to seek a buyer for
the land in 2013. Id. On August 20, 2013, Chetal-on
behalf of United-offered to purchase Porter's mining
rights, which Porter claims were worth between $11 billion
and $22 billion, and pay the required BLM maintenance fees.
ECF No. 39-1. In connection with this offer, Chetal also
provided documentary proof of his financial ability to pay.
ECF No. 39-3. Porter relied on these documents for assurance
of payment and accepted Chetal's offer.
Chetal proffered a check for $276, 480 to the BLM to cover
the maintenance fees, but the check was declined twice for
insufficient funds, and Porter permanently and irrevocably
lost all rights to her mining claims. See ECF No.
39-2. Along with breach of contract, Porter brought claims
for fraud, negligence, breach of the implied covenant of good
faith and fair dealing, and tortious breach of contract. ECF
filed a third-party complaint against George C. Schwelling,
Schwelling Recruiting Services, and Walton J. Antonell. ECF
No. 21. Chetal argued that these third-party defendants were
liable to him because they allegedly agreed to provide the
funds necessary to cover the BLM maintenance-fee check. The
third-party defendants moved to dismiss Chetal's claims
against them. ECF No. 24. The court granted their motion but
also granted Chetal leave to file an amended third-party
complaint within 20 days of the order. ECF No. 42. Because
Chetal failed to file an amended complaint, Schwelling,
Schwelling Recruiting Services, and Antonell are no longer
parties to this case. See ECF No. 44 at 1 n. 2.
eventually moved for summary judgment, which the court
granted only on her breach-of-contract claim against Chetal
and United but denied on all other claims. ECF No.
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 these 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.
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 plaintiff's
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.
Chetal nor any 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
response. Id. Porter timely moved for entry of
judgment pursuant to Federal Rule of Civil Procedure 54, but
Chetal failed to respond.
considering Porter's motion, the court concluded that,
because the court never granted summary judgment on damages
for her breach-of-contract claim, Rule 54 was not the proper
procedural mechanism for her desired relief. ECF No. 104 at
2. Instead, the court gave Chetal and United notice of its
intent to sua sponte grant summary judgment in favor
of Porter in the amount of two-hundred million dollars ($200,
000, 000.00). Id. (citing Fed.R.Civ.P. 56(f)). The
court listed the points of undisputed fact that it intends to
rely upon in granting summary judgment and ordered Chetal to
show cause as to why the court should not grant this relief.
Chetal and United have failed to respond.
judgment is appropriate only when “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c). In assessing a motion for
summary judgment, the evidence, together with all inferences
that can reasonably be drawn therefrom, must be read in the
light most favorable to the party opposing the motion.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Cty of Tuolumne v. Sonora Cmty.
Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001).
moving party bears the burden of informing the court of the
basis for its motion, along with evidence showing the absence
of any genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). On those issues for
which it bears the burden of proof, the moving party must
make a showing that is “sufficient for the court to
hold that no reasonable trier of fact could find other than
for the moving party.” Calderone v. United
States, 799 F.2d 254, 259 (6th Cir. 1986); see also
Idema v. Dreamworks, Inc., 162 F.Supp.2d 1129, 1141
(C.D. Cal. 2001).
successfully rebut a motion for summary judgment, the
non-moving party must point to facts supported by the record
that demonstrate a genuine issue of material fact. Reese
v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir.
2000). A “material fact” is a fact “that
might affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Where reasonable minds could differ on
the material facts at issue, summary judgment is not
appropriate. See v. Durang, 711 F.2d 141, 143 (9th
Cir. 1983). A dispute regarding a material fact is considered
genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Liberty Lobby, 477 U.S. at 248. The mere existence
of a ...