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Berberich v. Kishner

United States District Court, D. Nevada

July 5, 2017

KENNETH BERBERICH, Plaintiffs,
v.
HONORABLE JOANNA S. KISHNER, Defendants.

          ORDER

         Presently 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 No. 14).

         I. Facts

         Plaintiff's 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).

         A. The state court proceedings

         In 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).

         On 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).

         During 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).

         At the 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).

         Just 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).

         On 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).

         On 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).

         On 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).

         Regardless 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).

         The 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, ...


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