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Edwards v. Vemma Nutrition

United States District Court, D. Arizona

July 23, 2019

John Edwards, Plaintiff,
v.
Vemma Nutrition, et al., Defendants.

          ORDER

          DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE

         Between July 9 and July 12, 2019, four expedited motions were filed: (1) a second motion to withdraw as counsel filed by Plaintiff's counsel, Florin Ivan and Justin Clark (“Counsel”) (Doc. 170), (2) Plaintiff's motion for extension of time to respond to the pending motions for attorneys' fees (Doc. 171), (3) Counsel's motion to intervene (Doc. 172), and (4) Counsel's motion for extension of time to respond to the pending motions for attorneys' fees (Doc. 177).

         On July 11, 2019, Defendants Vemma Nutrition Company (“Vemma Nutrition”), Vemma International Holdings Incorporated (“Vemma Holdings”), and Bethany and Tom Alkazin (“the Alkazins”) responded to the first three motions. (Docs. 173, 174, 175.)

         On July 15, 2019, the Court granted in part and denied in part Plaintiff's motion for extension of time, granting an extension of 14 days rather than the 60-day extension sought by Plaintiff. (Doc. 178.) This opinion will supply the Court's analysis for its July 15, 2019 text-only order and will address the other three motions that remain pending. For the following reasons, Counsel's second motion to withdraw is denied without prejudice, Counsel's motion to intervene is denied, and Counsel's motion for extension of time to respond to the pending motions for attorneys' fees is denied as moot.

         BACKGROUND[1]

         On July 3, 2017, Plaintiff initiated this action by filing (pro se) the Complaint. (Doc. 1.) On August 25, 2017, Plaintiff-now represented by attorney Justin Clark-filed his First Amended Complaint (“FAC”). (Doc. 13.)

         On September 15, 2017, Vemma Nutrition filed a Motion to Compel Arbitration and Dismiss Action (Doc. 18), which the Court granted on January 31, 2018 (Doc. 61).

         In early 2018, Haresh Mehta (“Mehta”) filed a motion to dismiss the FAC for lack of personal jurisdiction (Doc. 57), the Alkazins filed a motion to dismiss the FAC for lack of personal jurisdiction (Doc. 74), and Vemma Holdings filed a motion to dismiss the FAC for failure to state a claim. (Doc. 70). On July 20, 2018, the Court issued an opinion granting all three motions. (Doc. 99.)

         On August 20, 2018, Plaintiff filed his Second Amended Complaint (“SAC”), naming all the non-fictitious Defendants named in the FAC. (Doc. 106-1.) On September 4, 2018, the Alkazins filed a motion to dismiss the SAC for lack of personal jurisdiction, or alternatively to compel arbitration (Doc. 112), and Vemma Holdings filed a motion to dismiss the SAC for failure to state a claim (Doc. 114).

         On September 28, 2018, Plaintiff filed a motion arguing that the Clerk of Court's dismissal of Mehta should be vacated. (Doc. 121.) The motion was signed by Florin V. Ivan of Ivan & Associates as “Attorney for Plaintiff” (id. at 3), although no motion for substitution had been filed. On October 1, 2018, the Court granted the motion and vacated the Clerk of Court's summary dismissal of Mehta. (Doc. 122.)

         On November 8, 2018, Mehta filed a motion entitled “Former Defendant Haresh Mehta's Motion to Clarify Dismissal and Alternative Renewal of Motion to Dismiss.” (Doc. 131.)

         On November 11, 2018, Florin Ivan filed a “Notice of Substitution of Counsel, Change of Firm, Change of Address, ” in which he gave notice that Plaintiff was represented by Florin V. Ivan and Justin M. Clark of the law firm Florin V. Ivan, P.C. dba Ivan & Associates. (Doc. 133.)

         On May 20, 2019, the Court granted the three pending motions to dismiss. (Doc. 148.) The Court noted that “although the SAC purports to assert three new causes of action that don't appear in the FAC, and also purports to seek certain new remedies that weren't sought in the FAC, the Court did not grant Edwards leave to amend his FAC in this fashion” and struck the newly added claims and remedies. (Id. at 7.)

         As to the Alkazins, the Court dismissed them again for lack of personal jurisdiction, noting that the SAC did not include facts suggesting that Plaintiff was harmed in Arizona by their conduct and that attempts to establish personal jurisdiction by other means exceeded the scope of the Court's leave to amend. (Id. at 8.) The Court also held that Plaintiff could not rely on a theory of general personal jurisdiction because he had waived any reliance on that theory in his response to the FAC. (Id.)

         As to Mehta, the Court noted that Mehta had been dismissed from the FAC without leave to amend, so no claims against Mehta should have been reasserted in the SAC. (Id. at 9.)

         As to Vemma Holdings, the Court held that the argument advanced in the SAC that Vemma Holdings is the alter ego of Vemma Nutrition was a futile argument that would necessarily result in the dismissal of Vemma Holdings, and that at any rate the argument was waived. (Id. at 10-11.)

         The Court further noted that dismissal of the only remaining defendants, Tarak Mehta and Vemma Vitamins Pty. Ltd. (“Vemma Vitamins”), appeared appropriate and ordered Plaintiff to file a written memorandum by June 17, 2019 showing cause why the SAC should not be dismissed as to those defendants . (Id. at 11-13.)

         The Alkazins, Mehta, and Vemma Holdings requested attorneys' fees in their motions to dismiss. The Court noted that it “tend[ed] to share the movants' belief that Edwards's conduct was unreasonable and had the effect of unfairly driving up his opponents' costs, ” but the Court denied the requests without prejudice and ordered that any motions for attorneys' fees (1) should include more fully developed briefing on the legal justifications for the fees, (2) should follow final judgment, (3) should comply with Local Rule 54.2, and (4) should be accompanied by an itemized statement of legal services in a format specified by the Court. (Id. at 13-15.)

         On June 11, 2019, Counsel filed a motion to withdraw as counsel of record without Plaintiff's consent. (Doc. 153.) On June 14, 2019, the Court noted that it could not find justifiable cause for withdrawal because it had no idea what Counsel's reasons for seeking withdrawal were. (Id. at 2.) The Court denied the motion without prejudice and permitted Counsel to file an ex parte motion under seal, ...


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