United States of America v. David Mednansky, individually and MARTINE MEDNANSKY, individually

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID MEDNANSKY, individually and
MARTINE MEDNANSKY, individually,
Defendants - Appellants.
No. 13-55662
D.C. No. 3:10-cv-01307-MMA-
BGS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted September 1, 2015**
San Francisco, California
Before: THOMAS, Chief Judge and HAWKINS and McKEOWN, Circuit Judges.
David and Martine Mednansky appeal pro se from the district court’s grant
of summary judgment to the United States in an ejectment and trespass suit
FILED
SEP 04 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 4 --

brought by the government. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We affirm.
1. The Mednanskys were properly served with the complaint through
their attorney. The district court therefore properly exercised personal jurisdiction
over the Mednanskys. The United States served the Mednanskys by delivering a
copy of the complaint “to an agent authorized by appointment or by law to receive
service of process.” Fed. R. Civ. P. 4(e)(2)(C). The Mednanskys retained their
counsel to represent them in a suit they filed pro se against Forest Service officials.
Their attorney-client relationship with their counsel continued in this case, which
was filed contemporaneous to the other litigation and involved many of the same
parties and related facts. See Damron v. Herzog, 67 F.3d 211, 214 (9th Cir. 1995).
Their counsel signed and acknowledged service of the complaint, and as such
became attorney of record for the Mednanskys. S.D. Calif. Local. R. 83.3(g)(1).
Their counsel need not have had express authority to accept service of process on
the Mednandskys behalf. In re Focus Media Inc., 387 F.3d 1077, 1082–83 (9th
Cir. 2004). Therefore, the district court did not abuse its discretion by exercising
personal jurisdiction. See Rio Props., Inc. v. Rio Intern. Interlink, 284 F.3d 1007,
1014 (9th Cir. 2002). The Mednanskys’ due process claim was not timely asserted
2

-- 2 of 4 --

and is therefore waived. Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 703–05 (1982).
2. The district court did not err by granting summary judgment to the
United States. Reviewed de novo, the district court’s ejectment and damages
decisions were proper, as the government showed there was no genuine dispute as
to any material fact and entitlement to judgment as a matter of law. See Fed. R.
Civ. P. 56(a); Szajer v. City of L.A., 632 F.3d 607, 610 (9th Cir. 2011).
3. The district court did not abuse its discretion in its rulings on the
Mednanskys’ motions to recuse. See Pesnell v. Arsenault, 543 F.3d 1038, 1043
(9th Cir. 2008). The Mednanskys relate no credible evidence of bias on the part of
either district judge. They have therefore failed to meet the statutory standard for
recusal. See 28 U.S.C. §§ 144, 455.
4. The district court did not abuse its discretion by denying the
Mednanskys’ last Rule 60 motion that identified for the first time legal precedent
that they could have presented earlier. See Kona Enters., Inc. v. Estate of Bishop,
229 F.3d 877, 890 (9th Cir. 2000).
5. The fact that the Mednanskys were pursuing their own litigation
against federal officials did not bar the United States from filing this ejectment and
trespass suit. See, e.g., Heckler v. Chaney, 470 U.S. 821, 838 (1985) (recognizing
3

-- 3 of 4 --

that the decision to institute an enforcement action is “committed to agency
discretion[.]”).
6. The Mednanskys’ challenges to the district court’s Rule 54(b) and
stay pending appeal rulings are without merit and otherwise are now moot. Earlier
decisions about the Mednansky’s request for a stay are now law of the case and
will not be revisited. Merritt v. Mackey, 932 F.3d 1317, 1320 (9th Cir. 1991).
7. The Mednanskys’ motion for Rule 11 sanctions is without merit.
“Rule 11 does not apply to appellate proceedings.” Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384, 406 (1990). The United States is not subject to sanctions on
appeal under Federal Rule of Appellate Procedure 38 because the government did
not file this appeal.
AFFIRMED.
4

-- 4 of 4 --