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Moran v. Svete

March 28, 2007

H. THOMAS MORAN, II, RECEIVER OF THE ASSETS OF LIFETIME CAPITAL, INC. AND CERTAIN AFFILIATED PERSONS AND ENTITIES PLAINTIFF,
v.
DAVID W. SVETE, DEFENDANT.



The opinion of the court was delivered by: Judge Thomas M. Rose

Magistrate Judge Sharon L. Ovington

ENTRY AND ORDER OVERRULING SVETE'S MOTION TO RECONSIDER THE ORDER OF JUDGE THOMAS M. ROSE DATED 12-12-06 (Doc. #38); OVERRULING SVETE'S OBJECTION TO THE USE OF A MAGISTRATE (Doc. #39); OVERRULING SVETE'S MOTION TO RECONSIDER THE NOTATION ORDER OF JUDGE THOMAS M. ROSE DATED 1-11-07 (Doc. #45); OVERRULING SVETE'S MOTION FOR LEAVE TO FILE AN ENLARGED MOTION (Doc. #46) AND STRIKING SVETE'S MOTION TO VACATE THE ORDER OF MAGISTRATE SHARON L. OVINGTON DATED 12-18-06 (Doc. #47)

Pro se Defendant David W. Svete ("Svete") currently has several motions pending before the Court and ripe for decision. Each will be addressed seriatim.

MOTION TO RECONSIDER THIS COURT'S ORDER

In his first pending motion, Svete seeks reconsideration of an Order entered by this Court on December 12, 2006 (the "December 2006 Order" found at doc. #35). (Doc. #38.) The December 2006 Order overruled Svete's Objections (doc. #34) to Magistrate Judge Ovington's Report and Recommendations (doc. #30) and adopted the Magistrate Judge's Report and Recommendations. This Report and Recommendations recommends denial of Svete's Motion To Dismiss for Lack of Jurisdiction Due To an Arbitration Agreement.

Svete now asks this Court to reconsider the December 2006 Order pursuant to Rules 52(b) and 59(e) of the Federal Rules of Civil Procedure. Rule 52, including section (b), applies to civil actions tried without a jury. In this case, there has not yet been a trial or a final judgment. Therefore, Rule 52(b) is not applicable.

Rule 59(e) applies to civil actions tried with a jury. As above, there has yet to be a trial or a final judgment in this matter. Therefore, Rule 59(e) is not applicable and Svete has not set forth any basis for his Motion To Reconsider.

Svete also argues that he has not received the December Order and asks that this Court "please double check their records to ensure that proper Notice is delivered next time." However, the December Order indicates that it was to be served on counsel of record and on Mr. Svete.

Mr. Svete then goes on to remind the Court of the "pro se prisoner mailbox rule." Svete argues that the pro se prisoner mailbox rule holds that prisoners are not served until they receive mail from the prison authorities. However, the prisoner mailbox rule set forth in Houston v. Lack, 487 U.S. 266 (1988), and the other cases cited by Svete, provides that a notice of appeal is filed at the time it is delivered to prison authorities for delivery to the court clerk. This rule as set forth in the cases cited by Svete applies to filings by pro se prisoners and not to the receipt of mail by pro se prisoners.

Svete raises a third procedural issue. In this case, the December Order was filed on December 12, 2006 and Svete's Motion To Reconsider was docketed on December 29, 2006. However, Svete attests that his Motion To Reconsider was filed on December 23, 2006. Assuming that Svete means that his Motion To Reconsider was delivered to the prison authorities for delivery to the court clerk, it was technically filed within a ten-day period following entry of the December Order. However, as indicated above, Svete's Motion To Reconsider is, for other reasons, not procedurally acceptable.

Svete's fourth procedural argument is that the December Order erred in setting forth the proper filing date of his objections to the Magistrate's Report and Recommendations. Svete argues that his objections were presumably delivered to the prison authorities, and thus filed, on November 9, 2006. However, Svete's argument regarding when his objections to the Magistrate's Report and Recommendations were technically filed is irrelevant because those objections were considered by this Court.

Even if Svete's Motion To Reconsider was procedurally sound, which it is not, the motion is not substantively well-founded. Svete's substantive objection is that a written arbitration agreement exists and the claims brought against him by the Receiver are required to be arbitrated. This is, at a minimum, the fourth time that Svete has raised this argument in some form or another. It has been raised twice in this case and two times in a companion case in this Court captioned Davis v. TimeLife Capital, Inc. No. 3:04-cv-059. This argument was unsuccessful for Svete the three prior times it was raised and it continues to be unsuccessful.

Svete begins by arguing that the Magistrate evidently has not seen the alleged arbitration agreement. However, while Svete's Motion To Dismiss (doc. #21) mentions an arbitration agreement, none is attached nor does the Motion To Dismiss indicate that an arbitration agreement is attached. In fact, Svete did not provide a copy of the arbitration agreement to the Court until he filed his Motion To Stay (doc. #32) which was docketed on November 13, 2006.

The Magistrate, however, referred to the Complaint which seeks to hold Svete personally liable, rather than liable in his corporate capacity as a former owner or office holder of LifeTime Capital. The Magistrate determined that the allegation that LifeTime Capital entered into contracts containing mandatory arbitration provisions does not establish that Svete entered into such contracts in his individual or personal capacity. Thus, according to the Magistrate, Svete failed to establish that the parties in this ...


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