Case 1:06-cv-01160-JB-SMV Document 152 Filed 03/20/09 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF NEW MEXICO
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`MARTIN S. FRIEDLANDER Individually As Assignee
`Of The Successor Trustee of the Legal Defense And
`Maintenance Trust of California, a citizen of California;
`And As an Express Third Party Beneficiary of the
`Legal Defense and Maintenance Trust of California,
`The Successor in Interest to All the Claims, Assets, Rights
`and Causes of Action Herein Asserted On Behalf of
`Santa Fe Business Park, LLC, Summit Floormart, LLC,
`Summit Valdes Business Park, LLC, Summit Investment
`Company, LLC, Summit Business Center, LLC, El Llano
`Sumit Caja Del Rio, LLC, and Jeffrey W. Potter,
`and YVETTE J. GONZALES, Trustee of the Bankruptcy Estate
`of Jeffrey Potter,
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`Plaintiffs,
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`vs.
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`RICHARD P. COOK; EL LLANO COMPANY, INC.;
`VALLEY NATIONAL BANK; COMEAU, MALDEGEN,
`TEMPLEMAN & INDALL, LLP; GRAY HANDY;
`PAULA A. COOK; VERN BOWERS; JOHN PATTERSON;
`ROBERT ENGEL; SONNY OTERO DBA OTERO
`CONSTRUCTION COMPANY; PHASE ONE REALTY;
`ERNEST (“ERNIE ROMERO”) AND W. JAMES METHANY;
`AND SARCO CONSTRUCTION COMPANY,
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`Defendants.
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`ORDER
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` No. CIV 06-1160 JB/DJS
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`THIS MATTER comes before the Court on: (i) the Plaintiff’s Objection to Proposed
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`Dismissal of Case, filed March 18, 2009 (Doc. 149)(“Objection”); and (ii) the Notice of Position
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`in Behalf of Defendant Sonny Otero, filed March 19, 2009 (Doc. 150)(“Notice”). The Court does
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`not believe that a hearing is necessary on these matters. The primary issue is whether the Court
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`should dismiss the causes of action in this case, with prejudice, as to former Plaintiff Martin S.
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`Case 1:06-cv-01160-JB-SMV Document 152 Filed 03/20/09 Page 2 of 5
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`Friedlander, but not dismiss them as to the Chapter 7 Trustee Yvette J. Gonzales, who has been
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`substituted for Friedlander as Plaintiff in this case. Because no one, including Friedlander, objects
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`to dismissing the causes of action as to Friedlander with prejudice, the Court will dismiss
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`Friedlander’s claims with prejudice as to Friedlander. Because Gonzales objects to having her
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`claims dismissed without prejudice and because the implication that the Court intended to dismiss
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`the claims as to Gonzales was the result of imprecise wording on the Court’s part in its March 5,
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`2009 Order (Doc. 145), the Court will sustain Gonzales’ objection.
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`Friedlander filed a Notice of No Further Prosecution of This Case Due to Present Lack of
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`Standing on October 19, 2008. See Doc. 141. The Court held a hearing on November 5, 2008, at
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`which it indicated that it would enter an order construing Friedlander’s notice as requesting
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`dismissal of his claims. On March 5, 2009, the Court entered an Order informing the parties that
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`it would treat Friedlander’s notice as a request for dismissal under rule 41(a)(2) of the Federal Rules
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`of Civil Procedure. See Doc. 148 at 4. The Court also stated that it would “consider the terms on
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`which dismissal should occur, i.e., with prejudice as to Friedlander but without prejudice as to
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`Trustee Yvonne Gonzales, or without prejudice to both Friedlander and Gonzales.” Id. Friedlander
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`was given fourteen days to object to dismissal with prejudice as to him. March 19, 2009 was thus
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`his final day to file objections. Friedlander has filed no objections.
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`Gonzales, however, lodged an objection. She objects to dismissal of the action as to her,
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`stating that dismissal would prejudice her because of the applicable statutes of limitations on some
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`of the claims Friedlander had asserted in his Complaint. See Objection ¶ 6, at 2-3. Defendant
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`Sonny Otero also filed a notice, indicating that he did not oppose dismissal with prejudice as to
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`Friedlander, provided he reserves all rights and defenses he might assert against Gonzales’ claims.
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`See Notice at 1.
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`-2-
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`Case 1:06-cv-01160-JB-SMV Document 152 Filed 03/20/09 Page 3 of 5
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`The Court could probably have found a better phrase than “without prejudice as to the
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`Trustee.” March 5, 2009 Order at 4. The Court’s intent, which it believes everyone who attended
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`the November 5, 2008 hearing shared, was that the bankruptcy estate’s claims, which Friedlander
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`was asserting, would be dismissed as to Friedlander being allowed to bring the claims. The Court
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`did not and does not intend to, at this stage, dismiss the claims themselves, which belong to the
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`estate. The Court intended to allow Gonzales, as the new Plaintiff and Chapter 7 Trustee, to assert
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`them. Because the Court’s earlier wording was unclear, the Court will sustain Gonzales’ objection.
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`Friedlander has not objected to dismissal of the claims with prejudice as to him, no one else has
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`objected to such an approach, and the Court believes that dismissal with prejudice would be
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`appropriate. The Court will therefore dismiss the claims Friedlander has asserted with prejudice as
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`to Friedlander. The Court will not dismiss the claims themselves, and Gonzales may continue to
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`advance those claims.
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`IT IS ORDERED that the Plaintiff’s Objection to Proposed Dismissal of Case is sustained.
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`The Court will dismiss former Plaintiff Martin S. Friedlander’s claims with prejudice as to him
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`asserting them. The Court will not dismiss the claims themselves. Plaintiff and Chapter 7 Trustee
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`Yvette J. Gonzales may continue to assert those claims.
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` ________________________________
`UNITED STATES DISTRICT JUDGE
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`Parties and Counsel:
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`Martin S. Friedlander
`Los Angeles, California
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`Plaintiff Pro Se
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`-3-
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`Case 1:06-cv-01160-JB-SMV Document 152 Filed 03/20/09 Page 4 of 5
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`Daniel J. Behles
`Cuddy Law Firm
`Albuquerque, New Mexico
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`Attorneys for Plaintiff Martin S. Friedlander
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`George Dave Giddens, Jr.
`Law Office of George “Dave” Giddens, P.C.
`Albuquerque, New Mexico
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`Attorneys for Plaintiff and Trustee Yvette Gonzales
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`Paul Maestas
`Wayne R. Suggett
`Maestas & Suggett, P.C.
`Albuquerque, New Mexico
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`Attorneys for Defendants Richard P. Cook,
` Sarco Construction Company, and
` El Llano Company
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`Eric M. Sommer
`Sommer, Udall, Hardwick, Ahern & Hyatt, LLP
`Santa Fe, New Mexico
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`Attorneys for Defendant Valley National Bank
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`Jim Dines
`Michael A. Gross
`Steven J. Leibel
`Dines & Gross, P.C.
`Albuquerque, New Mexico
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`Attorneys for Defendants Comeau, Maldegen,
` Templeman & Indall, LLP, Paula Cook, and Grey Handy
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`Briggs F. Cheney
`Law Office of Briggs F. Cheney
`Albuquerque, New Mexico
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`Attorneys for Defendant John Patterson
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`-4-
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`Case 1:06-cv-01160-JB-SMV Document 152 Filed 03/20/09 Page 5 of 5
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`J. E. Gallegos
`Gallegos Law Firm, P.C.
`Santa Fe, New Mexico
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`Attorneys for Defendant Sonny Otero d/b/a Otero Construction Company
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`David A. Grammar, III
`Aldridge, Grammar, Jeffrey & Hammar, P.A.
`Albuquerque, New Mexico
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`Attorneys for Defendants Phase One Realty, Inc.,
` Ernest “Ernie” Romero, and W. James Metheny
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`John A. Bannerman
`Bannerman & Williams, P.A.
`Albuquerque, New Mexico
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`Attorneys for Defendant Robert Engel
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`Grey W. Handy
`Comeau, Maldegen, Templeman & Indall, LLP
`Santa Fe, New Mexico
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`Attorneys for Defendants Grey W. Handy and Vern Bowers
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`-5-
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