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Porter v. Chetal

United States District Court, D. Nevada

March 27, 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.

         In its 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.

         I. Background

         This is 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”).[1] 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.

         Thereafter, 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 No. 1.

         Chetal filed a third-party complaint[2] 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.

         Porter eventually moved for summary judgment, which the court granted only on her breach-of-contract claim against Chetal and United[3] 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.

         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, [4] 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.

         Neither 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.

         After 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.

         II. Legal standard

         Summary 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).

         The 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).

         To 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 ...


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