United States District Court, D. Nevada
before the court is defendant Judge Joanna Kishner's
(“Judge Kishner”) motion to dismiss. (ECF No. 6).
Plaintiff Kenneth Berberich (“Berberich”) filed a
response (ECF No. 13), to which Judge Kishner replied (ECF
instant complaint alleges a § 1983 due process violation
based on Judge Kishner's conduct while she presided over
plaintiff's state court case. (ECF No. 1). Plaintiff
alleges that Judge Kishner, a Nevada district court judge,
acted without jurisdiction when she issued an order that
dismissed plaintiff's state court complaint and deferred
closing the case for sixty days to determine if sanctions or
fees were appropriate. (ECF Nos. 1, 7-1).
The state court proceedings
state court, plaintiff's counsel, Jeff Brauer
(“Brauer”), filed a complaint against Southern
Highland Community Association (“SHCA”) and
Olympia Management Services, LLC (“Olympia”) on
February 16, 2016. (ECF No. 6 at 3). Judge Kishner presided
over that case. (ECF No. 6 at 3). Four months later, Brauer
named Berberich as the sole plaintiff. (ECF No. 6 at 3).
August 2, 2016, plaintiff's counsel filed a proposed
order (“August 2nd order”) to voluntarily dismiss
the state court case. (ECF No. 1 at 4). Defendants motioned
to set aside the order the next day. (ECF No. 6 at 6).
Defendant SHCA asserted the August 2nd order was not served
on all parties, and contradicted a prior agreement between
the parties regarding attorney's fees. (ECF No. 6 at 9).
a hearing on September 6, 2017, plaintiff admitted the August
2nd order falsely represented who would pay attorney's
fees. (ECF No. 7 at 63). As a result, Judge Kishner struck
the August 2nd order from the record, stating “it was
improperly submitted to the court.” (ECF No. 7 at 67).
same hearing, Judge Kishner gave plaintiff a chance to
resubmit his motion, but reminded him that all future orders
needed to reflect an agreement between parties under Nevada
Rules of Civil Procedure 41(a)(1). (ECF No. 7 at 78).
hours later, plaintiff's counsel resubmitted the same
August 2nd order as a notice of entry, concealing the
ineffective order with a new title, but identical language.
(ECF No. 6 at 7). Judge Kishner refused to sign the September
6, 2016, notice of entry, finding it inaccurate and
“procedurally defective.” (ECF No. 6 at 8).
September 9, 2016, plaintiff filed the first of four
petitions for writ with the Nevada Supreme Court. (ECF No. 7
at 82-84). The supreme court asked the trial court to
withhold writing an order on its September 6, 2016 ruling;
the trial court obliged. (ECF No. 6 at 7). After five weeks,
the trial court entered its order striking the August 2nd
order and denying SHCA's request for sanctions. (ECF No.
6 at 8).
belief that plaintiff still wanted to dismiss the suit,
defendants filed a motion to dismiss on November 7, 2016.
(ECF No. 6). Thereafter, plaintiff failed to comply with an
early case conference scheduling meeting and asked to
reschedule the hearing three times. (ECF No. 6 at 8-9). As a
result of plaintiff's noncompliance, the Judge Kishner
issued a motion to show cause on December 28, 2016. (ECF No.
7 at 100).
December 29, 2016, plaintiff filed a motion to cancel the
hearing, claiming the case was properly dismissed in August
2016. (ECF No. 7 at 107). Plaintiff's assertion was
erroneous. (ECF No. 6 at 10). Since Judge Kishner struck the
August 2nd order from the record and plaintiff never
correctly filed another order, no proper voluntary dismissal
existed. (ECF No. 6 at 10). Thus, the case remained open.
(See ECF No. 6 at 10).
of plaintiff's incorrect claim, plaintiff's counsel
did indicate that he would be present at the hearing
scheduled for January 10, 2017. (ECF No. 6 at 10).
morning of January 10th, Brauer sent an email stating he
would not be able to attend the hearing. (ECF No. 6 at 10).
Judge Kishner had no choice but to delay the hearing for the
fourth time, ...