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COUNTRYWIDE HOME LOANS, INC., et. al., Plaintiffs, vs. ARBITRATIONALLIANCE INTERNATIONAL, LLC, et. al., Defendants.

Case No. 2:04-CV-152 TS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH,CENTRAL DIVISION

2006 U.S. Dist. LEXIS 19487

March 3, 2006, Decided

COUNSEL: [*1] For Countrywide Home Loans, a NewYork corporation, Stanford L. Kurland, Plaintiffs: DanielW. Anderson, Bradley L. Tilt, FABIAN &CLENDENIN, SALT LAKE CITY, UT.

For Arbitration Alliance International, a Utah limitedliability company, Defendant, Pro se, ST GEORGE, UT.

For Winston Shrout, Defendant, Pro se, IVINS, UT.

For Rebecca Nelson, Defendant, Pro se, N LAS VEGAS,NV.

For Darren Kehau Kamalu, Defendant, Pro se,KANE'OHE, HI.

For Ernell Noelani Kamalu, Defendant, Pro se,KANE'OHE, HI.

JUDGES: TED STEWART, United States DistrictJudge.

OPINION BY: TED STEWART

OPINION

MEMORANDUM DECISION AND ORDERRESOLVING ALL PENDING MOTIONS

Before the Court are Plaintiff Countrywide HomeLoans, Inc. and Plaintiff Stanford L. Kurland's (Plaintiffs)Motion for Entry of Permanent Injunction, Confirmationof Continuing Validity of Underlying Mortgage, andEntry of Judgment, Including by Default, 1 DefendantErnell Noelani Kamalu's Motion to Dismiss for Lack ofProsecution, 2 and Motion to Strike, 3 and DefendantDarren Kehau Kamalu's Motion to Stay. 4

1 Docket No. 91.2 Docket No. 95.3 Docket No. 103.

[*2]4 Docket No. 105.

As set forth below, the Court grants in part anddenies in part Plaintiffs' Motion for Entry of Judgment,denies Plaintiffs' Motion for Permanent Injunction, andgrants in part and denies in part Plaintiffs' Motion forConfirmation of Continuing Validity of UnderlyingMortgage. The Court denies Defendant Ernell NoelaniKamalu's Motion to Dismiss for Lack of Prosecution.Finally, the Court finds moot Defendant Ernell NoelaniKamalu's Motion to Strike and Defendant Darren KehauKamalu's Motion to Stay.

The Court notes that Defendants Ernell NoelaniKamalu and Darren Kehau Kamalu (the Kamalu

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Defendants) are proceeding pro se in this matter.

DISCUSSION

I. MOTION FOR ENTRY OF JUDGMENT,INCLUDING BY DEFAULT

Plaintiffs bring Motion for Entry of Judgment,Including by Default 5 against Defendants ArbitrationAlliance International, LLC, Winston Shrout, NickolasWm. Bird, Rebecca Nelson, Ernell Noelani Kamalu andDarren Kehau Kamalu. The Court will address therequest as pertaining to the Kamalu Defendantsseparately from the other referenced Defendants whofailed to [*3] appear in this case.

5 Docket No. 91.

A. Defendants Failing to Appear

The record before the Court reflects that DefendantsArbitration Alliance International, LLC, Winston Shrout,Nickolas Wm. Bird and Rebecca Nelson were dulyserved with process and have failed to appear, plead, orotherwise defend this matter, and the time to do so haspassed. Additionally, the Court notes that the Clerk of theCourt has issued a Certificate of Default. Pursuant to Fed.R. Civ. P. 55(b)(2), the Court now grants Plaintiff'sMotion for Entry of Judgment, Including by Default,against these Defendants and awards Plaintiffs the reliefsought in their Complaint.

Because the Court grants judgment againstDefendants Arbitration Alliance International, LLC,Winston Shrout, Nickolas Wm. Bird and RebeccaNelson, the remaining analysis in this Order applies onlyto Plaintiffs and the Kamalu Defendants, the onlyremaining parties before the Court.

B. Kamalu Defendants

Plaintiffs argue [*4] that all evidence relevant to itsclaims against the Kamalus is before the Court. In fact,Plaintiffs argue that this evidence was provided to theCourt during the Court's consideration of the motionsruled upon by the Court's April 14, 2004 MemorandumDecision and Order. 6 The Kamalu Defendants disputethis assertion and ask the Court to deny Plaintiffs'Motion. In their individual motions, the KamaluDefendants also attempt to grapple with Plaintiffs'assertion that no other evidence is relevant.

6 Docket No. 43.

The Court notes that the parties confuse the issuesbefore them. The Court finds that the root of theconfusion, in large measure, grows out of the form ofPlaintiffs' Motion, which is in some respects novel and inmany respects awkward. Particularly in light of the factthat the Kamalu Defendants are proceeding pro se, theCourt will insist that Plaintiffs attempt to resolve theircase against Kamalu Defendants by grounding theirmotions (particularly those that are dispositive in nature)in [*5] those motions provided for by the Federal Rulesof Civil Procedure. Because Plaintiffs fail to providesufficient reason to grant judgment based upon thoserules, the Court will deny Plaintiffs' Motion for Entry ofJudgment, Including for Default, as it pertains to theKamalu Defendants. If Plaintiffs desire to dispose ofclaims or parties, they are encouraged to avail themselvesof the normal procedural process of dispositive motionsto attempt to do so.

II. MOTION FOR ENTRY OF PERMANENTINJUNCTION

Plaintiffs ask the Court to make permanent itspreliminary injunction against the Kamalu Defendants. 7

The rationale stated by Plaintiffs relies on the strength ofthe Court's April 14, 2004 Memorandum Decision andOrder 8 and the allegation that the Court had all therelevant information before it when it entered saidMemorandum Decision and Order.

7 Docket No. 91.8 Docket No. 43.

While the Court has no reason to believe that itsApril 14, 2004 Memorandum Decision and Order is inerror, Plaintiffs [*6] have not provided the Courtsufficient grounds for the Court to turn its preliminaryinjunction into a permanent injunction. Plaintiffs bear theburden of satisfying the Federal Rules of CivilProcedure. As Plaintiff's claims have not beendispositively resolved, the Court believes it is prematureat this juncture to make permanent the preliminaryinjunction already in effect. Therefore, while the Courtemphasizes that the preliminary injunction remains in fullforce and effect, the Court denies Plaintiffs' Motion forEntry for Permanent Injunction.

III. MOTION FOR CONFIRMATION OFCONTINUING VALIDITY OF UNDERLYING

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MORTGAGE

Plaintiffs also bring a Motion for Confirmation ofContinuing Validity of Underlying Mortgage. 9 It is notentirely clear whether Plaintiffs ask the Court to reaffirmits prior orders, particularly its April 14, 2004Memorandum Decision and Order, or whether they seekadditional relief. Regardless, the Court has no reason todoubt the soundness of its prior orders, including its April14, 2004 Memorandum Decision and Order.Additionally, with regards to the Motion forConfirmation of Continuing Validity of UnderlyingMortgage, as noted, Plaintiffs have [*7] provided theCourt no additional grounds to provide additional relief.

9 Docket No. 91.

Therefore, the Court grants Plaintiffs Motion to theextent it seeks reaffirmation of the Court's prior ordersand denies it to the extent it seeks additional reliefbeyond that already provided by the Court.

IV. MOTION TO DISMISS FOR LACK OFPROSECUTION

Defendant Ernell Noelani Kamalu brings a Motion toDismiss for Lack of Prosecution. Her stated basis forbringing this Motion stems from two basic complaints:(1) the protracted nature of this litigation and (2)Plaintiffs' failure to provide their attention to this suit.While the Court agrees that this litigation has takenlonger than what it considers optimal, the Court isunwilling to dismiss this litigation based on the lapse oftime alone. As to Defendants' second general point,Plaintiffs argue and, indeed the record reflects, that at thetime Defendant Ernell Noelani Kamalu brought hermotion claiming Plaintiffs' silence, Plaintiffs had filed itsMotion for [*8] Entry of Permanent Injunction,Confirmation of Continuing Validity of UnderlyingMortgage, and Entry of Judgment, Including by Default.The Court assumes that Defendant Ernell NoelaniKamalu made an inadvertent oversight of this fact.

The Court finds no grounds to grant DefendantErnell Noelani Kamalu's Motion to Dismiss for Lack ofProsecution. Therefore, it will deny this Motion.

V. MOTION TO STRIKE

Defendant Ernell Noelani Kamalu also brings aMotion to Strike. The crux of this Motion is that

Plaintiffs created undue confusion by combining a replybrief and opposition brief into a single document. Inresponse to this Motion, Plaintiffs separated theirresponses to conform with the objections raised inDefendant Ernell Noelani Kamalu's Motion to Strike.

Due to Plaintiffs' response which provided separatememoranda for Defendant Ernell Noelani, Kamalu, theCourt finds this Motion to Strike moot.

VI. MOTION TO STAY

Defendant Darren Kehau Kamalu brings a Motion toStay. The Motion hinges on the argument that it would beunfair to grant Plaintiffs' Motion for Entry of PermanentInjunction, Confirmation of Continuing Validity ofUnderlying Mortgage, and Entry of Judgment, [*9]Including by Default until further discovery is conducted.

Because the Court has not granted any new reliefagainst Defendant Darren Kehau Kamalu in its ruling onPlaintiff's Motion for Entry of Permanent Injunction,Confirmation of Continuing Validity of UnderlyingMortgage, and Entry of Judgment, Including by Default,the Court finds this Motion moot.

However, the Court does find the rationale andrequest to provide orderly discovery and management ofthis case convincing. The Court will, by separate Order,direct the parties to confer and submit a scheduling orderto that end.

CONCLUSION

Based upon the above, it is hereby

ORDERED that Plaintiffs' Motion for Entry ofDefault (Docket No. 91) is GRANTED as to DefendantsArbitration Alliance International, LLC, Winston Shrout,Nickolas Wm. Bird and Rebecca Nelson and DENIED asto Defendants Ernell Noelani Kamalu and Darren KehauKamalu. It is further

ORDERED that Plaintiffs are awarded the reliefsought in their Complaint against Defendants ArbitrationAlliance International, LLC, Winston Shrout, NickolasWm. Bird and Rebecca Nelson. It is further

ORDERED that Plaintiffs' Motion for Entry ofPermanent Injunction (Docket No. [*10] 91) is DENIEDas to Defendant Ernell Noelani Kamalu and DarrenKehau Kamalu Ernell. It is further

Page 32006 U.S. Dist. LEXIS 19487, *6

ORDERED that Plaintiffs' Confirmation of ContinuingValidity of Underlying Mortgage (Docket No. 91) isGRANTED to the extent that Plaintiffs ask the Court toreaffirm its prior judgments and DENIED to the extentPlaintiffs request additional relief. It is further

ORDERED that Defendant Ernell Noelani Kamalu'sMotion to Dismiss for Lack of Prosecution (Docket No.95) is DENIED. It is further

ORDERED that Defendant Ernell Noelani Kamalu'sMotion to Strike (Docket No. 103) is MOOT. It is further

ORDERED that Defendant Darren Kehau Kamalu'sMotion to Stay (Docket No. 105) is MOOT. It is further

SO ORDERED.

DATED this 3rd day of March, 2006.

BY THE COURT:

TED STEWART

United States District Judge

Page 42006 U.S. Dist. LEXIS 19487, *10