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Bill Villers and Ibr Inc v. Kimberly D. Nelson

September 7, 2012

BILL VILLERS AND IBR INC.,
PLAINTIFFS,
v.
KIMBERLY D. NELSON, DISTRICT RANGER; BILL WOOD, SALMON/CHALLIS SUPERVISOR; DENNIS KRASOWSKI, BLM GEOLOGIST; RUSS BJORKLUND, USFS
GEOLOGIST, DEFENDANTS.



The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER RE: DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT (Docket No. 10)

PLAINTIFFS' MOTION FOR MONETARY RELIEF AND MOTION TO STOP FRIVOLOUS MOTIONS BY DEFENSE COUNSEL (Docket No. 21)

PLAINTIFFS' MOTION TO STOP DEFENSE COUNSEL PROVIDING IMPROPER LEGAL COUNSEL TO DEFENDANTS (Docket No. 29)

Currently pending before the Court are: (1) Defendants' Motion to Dismiss or, in the Alternative, for a More Definite Statement (Docket No. 10); (2) Plaintiffs' Motion for Monetary Relief and Motion to Stop Frivolous Motions by Defense Counsel (Docket No. 21); and (3) Plaintiffs' Motion to Stop Defense Counsel Providing Improper Legal Counsel to Defendants (Docket No. 29). Having carefully reviewed the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:

I. BACKGROUND

1. On or about July 14, 2011, Plaintiffs initiated this action in the District Court of the Seventh Judicial District in the State of Idaho in and for Lemhi County. See Affirmation of Lien; Report; and Notice of Payment on Demand (Docket No. 1, Atts. 2-4).

2. On August 19, 2011, Defendants removed the action to this Court, pursuant to 28 U.S.C. § 1442(a)(1). See Notice of Removal (Docket No. 1).

3. Also on August 19, 2011, Defendants requested that this Court "screen this action before the case proceeds any further," pursuant to 28 U.S.C. § 1915(e)(2)(B). See Request for Screening of Case (Docket Nos. 2 & 5).

4. The undersigned denied Defendants' request, but invited Defendants to separately move to dismiss the action. See 10/27/11 Order, p. 5 (Docket No. 8) ("Therefore, the Court will not dismiss Plaintiffs' action absent a motion outlining what appears to be a variety of potential bases for dismissal, coupled, then, with Plaintiffs' opportunity to respond.").

5. On November 14, 2011, Defendants filed a Motion to Dismiss or, in the alternative, Motion for a More Definite Statement ("Defendants' Motion") (Docket No. 10). The bases for Defendants' Motion are (1) lack of personal jurisdiction, (2) insufficient process, (3) insufficient service of process, and (4) failure to state a claim upon which relief can be granted. See Mem. in Supp. of Mot. to Dismiss, p. 1 (Docket No. 10, Att. 1). Additionally, Defendants argue that IBR, Inc., the corporation, should be dismissed as a plaintiff because it is not represented by counsel. See id. at p. 2.

6. On November 15, 2011, this Court issued a Notice to Pro Se Litigants of the Summary Judgment Rule Requirements ("First Notice"), outlining the protocol for responding to either motions to dismiss or motions for summary judgment. See Notice to Pro Se Litigants (Docket No. 11). As of the date of the First Notice, Plaintiffs' response to Defendants' Motion was due on December 8, 2011.

7. On November 22, 2011, Plaintiffs filed their Motion to Allow "Amicus Curia" A Friend of the Court. See Mot. to Allow "Amicus Curiae" a Friend of the Court (Docket No. 12). At that time, it was not clear to the Court whether this motion constituted Plaintiffs' response to Defendants' Motion.

8. On November 29, 2011, Plaintiffs also filed a Motion for Expedited Hearing. See Mot. for Expedited Hearing (Docket No. 13). At that time, it was also not clear to the Court what, exactly, Plaintiffs sought an expedited hearing about.

9. Despite these questions, in a December 2, 2011 Order, this Court (1) denied Plaintiffs' Motion to Allow "Amicus Curia" A Friend of the Court (Docket No. 12), and (2) denied Plaintiff's Motion for Expedited Hearing (Docket No. 13). See 12/2/11 Order at pp. 1-3 (Docket No. 15). Within the December 2, 2011 Order, however, the Court indicated that Plaintiffs' response to Defendants' Motion was now due on December 15, 2011 ("Second Notice"). See id. at p. 3 ("For the foregoing reasons, IT IS HEREBY ORDERED THAT Plaintiffs' (1) Motion to Allow "Amicus Curiae" A Friend of the Court [and (2) Motion for Expedited Hearing] (Docket Nos. 12 & 13 are both DENIED. However, to the extent necessary, Plaintiffs shall be given until December 15, 2011 to respond to Defendants' Motion.") (Emphasis in original). Importantly, in denying these two motions, this Court did not address Defendants' Motion, let alone dismiss Plaintiffs' claims.

10. On or around December 7, 2011, Plaintiffs filed a Notice of Appeal (Docket No. 16). Within their Notice of Appeal, Plaintiffs alleged in full:

THE PLAINTIFF,S BILL VILERS & IBR INC. PAID UP FRONT MONIES TO HAVE A HEARING IN THE LOWER COURT. THE PLAINTIFF,S NEVER received NOTICE FROM THE LOWER COURT AS WHY OR AN EXPLANATION GIVEN TO THE PLAINTIFFS LEIN WAS MOVED TO FEDRAL COURT. THIS WOULD BE A VIOLATION OF TITLE, (42 USC SECTION 1983;) (DEPERIVATION OF CIVIL RIGHT,S;) THERE ARE NO LEGITIMATE REASONS FOR THIS VIOLATION. WITH THIS IN MIND THE PLAINTIFF,S ARE ASKING THE COURT TO RESCIND IT,S DECISION'S THAT IT GAVE TO THE DEFENDANT'S. ON DECEMBER 2, 2011. BY KEEPING IN MIND THAT PLAINTIFF'S ASKED THE LOWER COURT FOR AN IN-COURT HEARING. WHERE AS BOTH PARTIES CAN BRING EVIDENCE FOR their RESPECTIVE POINT'S OF VIEW. IN RESPONSE TO DEFENDANT'S' MOTION'S.

See Not. of Appeal (Docket No. 16) (Emphasis in original).

11. On or around January 11, 2012, the United States Court of Appeals for the Ninth Circuit dismissed Plaintiffs' appeal for lack of jurisdiction. As a result, Defendants' Motion, and the arguments contained therein, remained before this Court for the undersigned's consideration. Plaintiff still had not responded to Defendants' Motion.

12. On January 13, 2012, the Court indicated that Plaintiffs' response to Defendants' Motion was now due on February 6, 2012 ("Third Notice"). See Third Notice, p. 4 (Docket No. 20) ("Therefore, on or before February 6, 2012, Plaintiffs shall respond to Defendants' Motion. In the event Plaintiffs altogether fail to respond to Defendants' Motion or submit a "response" that does not address the arguments raised within Defendants' Motion, ...


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