United States District Court, D. Arizona
DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE
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).
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.)
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.
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.)
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).
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.)
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).
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.)
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.)
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.
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.)
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.
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.)
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.)
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.)
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.)
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, ...