Case Information
**E-Filed 10/1/08** IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
MICHAEL BLOMQUIST, et al., Case Number C 07-04108 JF (HRL) Plaintiffs, ORDER RE DISMISSED NON-LENDER DEFENDANTS’ RESPONSE TO PLAINTIFF’S SECOND AMENDED COMPLAINT AND ORDER DENYING EX PARTE MOTION FOR DEFAULT JUDGMENT [1]
v.
WASHINGTON MUTUAL, et al.,
Defendants.
[re: doc. nos. 151 & 156]
On July 23, 2008, the Court granted the motion of certain defendants to dismiss Plaintiff’s First Amended Complaint (the “Dismissal Order”). The Dismissal Order granted Plaintiff, who is proceeding pro se , leave to file a Second Amended Complaint (“SAC”) naming only the Lender Defendants; leave to amend was denied as to the Non-Lender Defendants. Accordingly, on July 25, 2008 the Court entered a final judgment (the “Non-Lender Judgment”) in favor of Non-Lender Defendants Goldman Sachs Group, Inc., Henry Paulson, The McGraw- Hill Companies, Inc., Harold McGraw III, Experian Holdings, Inc. (sued as Experian Corp.), Fitch Group, Inc. (sued as Fimalac, Inc.), and Moody’s Corp. Plaintiff filed a notice of appeal as to the Non-Lender Judgment on August 25, 2008.
In the Dismissal Order, the Court instructed Plaintiff not only to omit any claims against the Non-Lender Defendants but also to omit any claims against the Lender Defendants for securities fraud. In contravention of these instructions, the SAC contains claims against the Non- Lender Defendants and alleges purported claims for securities fraud against the Lender Defendants. Accordingly, the Court issued an order on September 10, 2008, instructing the Lender Defendants to respond only to the claims expressly permitted by the Dismissal Order.
Subsequently, several of the Non-Lender Defendants filed a document with the Court, apparently seeking to clarify that they need not respond to the SAC because of the prior Non- Lender Judgment in their favor. Plaintiff filed a response to this notice, arguing that the SAC does apply to the Non-Lender Defendants because it contains new allegations involving antitrust, negligence, and RICO claims based upon previously unpled facts. See , e.g ., Pl.’s Mem. Opp. Mot. Dismiss/Strike at 4, Sept. 26, 2008 (The “facts and issues to support these claims are not the same as the claims in the first complaint.”). Plaintiff also proceeded to file an ex parte motion requesting default judgment against one of the Non-Lender Defendants, Henry Paulson, on the ground that Mr. Paulson was served and failed to file an answer or otherwise respond to Plaintiff’s original complaint.
Plaintiff’s actions and arguments are incorrect and contrary to the express terms of the Dismissal Order. The Dismissal Order and Non-Lender Judgment operate as a final judgment against the Non-Lender Defendants. Whether Plaintiff should have been permitted to amend his claims against the Non-Lender Defendants is an issue to be resolved on appeal. Accordingly, and consistent with the Court’s prior instructions, any allegations against the Non-Lender Defendants are hereby stricken from the SAC. Plaintiff’s ex parte motion for default judgment is denied because judgment already has been entered in favor of Mr. Paulson, as set forth in the Dismissal Order and Non-Lender Judgment.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s allegations against the Non- Lender Defendants are stricken from the SAC, and Plaintiff’s ex parte motion for default judgment against Henry Paulson is DENIED.
DATED: October 1, 2008
___________________________ JEREMY FOGEL United States District Court This Order has been served upon the following persons:
Charles G. Miller cmiller@bztm.com, jcoster@ssbb.com, jrubins@ssbb.com, pbrown@bztm.com Christopher A. Stecher christopher.stecher@kyl.com, menchie.garcia@kyl.com Christopher Alan Carr ccarr@afrct.com, ccarr@afrct.com
Elizabeth Allen Frohlich efrohlich@morganlewis.com, jowyang@morganlewis.com Erik Wayne Kemp ek@severson.com, ek@severson.com, ano@severson.com John B. Sullivan jbs@severson.com
Jonathan Alan Patchen jpatchen@tcolaw.com, abradley@tcolaw.com, cdunbar@tcolaw.com, hcaughron@tcolaw.com, sbundy@tcolaw.com Lloyd Winawer lwinawer@goodwinprocter.com, cburgos@goodwinprocter.com, monyeagbako@goodwinprocter.com, sasmith@goodwinprocter.com Martin L. Fineman martinfineman@dwt.com, edithshertz@dwt.com Melinda Mae Morton mmorton@be-law.com, gsimmons@be-law.com, troy@cahill.com Michael Scott Blomquist michaelsblomquist@gmail.com
Michael Scott-Alan Blomquist michaelsblomquist@gmail.com
Michael William Stebbins mstebbins@be-law.com, vross@be-law.com Peter R. Boutin peter.boutin@kyl.com
Regina Jill McClendon , Esq rjm@severson.com, ksb@severson.com Ryan Jude Thompson rthompson@goodwinprocter.com, rnelson@goodwinprocter.com, srosesmith@goodwinprocter.com, thefferon@goodwinprocter.com Sabrina M. Rose-Smith srosesmith@goodwinprocter.com
Sam N. Dawood samdawood@dwt.com, allanpatterson@dwt.com, pammaiwandi@dwt.com Stephen E. Taylor staylor@tcolaw.com, abradley@tcolaw.com, achung@tcolaw.com, cdunbar@tcolaw.com, hcaughron@tcolaw.com, jgrant@tcolaw.com, jhinesshah@tcolaw.com, jpatchen@tcolaw.com, sbundy@tcolaw.com Stephen Michael Rummage steverummage@dwt.com, jeannecadley@dwt.com Theodore Walter Maya tmaya@kayescholer.com
Thomas M. Hefferon thefferon@goodwinprocter.com James J. Coster Satterlee Stephen Burke & Burke LLP 230 Park Avenue New York, NY 10169
Joshua M. Rubins Satterlee Stephens Burke & Burke 230 Park Ave New York, NY 10169-0079
[1] This disposition is not designated for publication in the official reports.