Eichenberger v. Falcon Air Express Incorporated
Filing
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ORDER granting 29 Defense counsel's MOTION to Withdraw as Attorney for Defendant. The Court will enter default judgment against Defendant. Plaintiff shall, by February 20, 2015, submit a proposed form of judgment. Signed by Judge David G Campbell on 2/9/15. (LSP)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Lori Eichenberger,
No. CV-14-00168-PHX-DGC
Plaintiff,
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v.
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ORDER
Falcon Air Express Incorporated,
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Defendant.
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The Court held a hearing on February 6, 2015. On the basis of the hearing and the
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record in this case, the Court has determined that it must enter default judgment against
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Defendant Falcon Air Express Incorporated.
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The Court set a case management schedule for this case on August 26, 2014.
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Doc. 18. The order cautioned the parties that the deadlines established by the Court were
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real and that the Court would not, absent truly extraordinary circumstances, extend the
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schedule. Id. at 5.
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A few months later, Defendant’s counsel moved to withdraw. The Court set a
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hearing for December 19, 2014, and ordered a representative of Defendant to participate.
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The hearing was held as scheduled, and the general manager of Defendant, Nelson
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Ramiz, Jr., participated. Defense counsel stood by their motion to withdraw. The Court
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explained to Mr. Ramiz that a corporate defendant cannot appear in court without
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counsel, and that the Court would be required to enter a default judgment against
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Defendant if it did not find replacement counsel. Mr. Ramiz said he understood, and that
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Defendant planned to locate replacement counsel promptly.
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granted Defendant until January 23, 2015, for new counsel to appear.
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The Court also discussed discovery issues.
The Court accordingly
Defendant had not responded to
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written discovery served by Plaintiff. The Court extended the discovery response date to
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February 6, 2015, and advised Mr. Ramiz that the new defense counsel would need to be
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prepared to provide the requested documents and interrogatory answers by that date. The
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Court also told the parties it would hold a second case management conference on
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February 6, 2015, to adjust the remainder of the litigation schedule in light of the delay
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caused by the motion to withdraw and the failure to respond to discovery.
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Although new counsel did appear for Defendant, that counsel promptly moved to
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withdraw. Doc. 29. Counsel’s motion to withdraw explains that Defendant has failed to
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respond to counsel’s repeated attempts to communicate regarding the case and the
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pending deadlines, leaving counsel unable to properly represent Defendants. Id. The
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Court promptly set a hearing on the motion to withdraw for February 6, 2015. Doc. 30.
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The Court specifically required Mr. Ramiz to appear by telephone at the hearing,
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directing him to call the Court’s chambers before the hearing. Id.
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Mr. Ramiz did not appear or participate in the hearing. The Court’s staff tried to
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call him twice on a number used to reach him in the past, but received no answer. Staff
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left a message, but Mr. Rmiz never returned the call. Defense counsel stated during the
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hearing that he emailed a copy of the Court’s order to Mr. Ramiz and emphasized his
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need to participate in the hearing. Defense counsel said he had received other responses
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from Mr. Ramiz, using the same email address, since he sent the email regarding the
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hearing, suggesting that Mr. Ramiz received the order. Counsel also sent a copy of the
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order to Mr. Ramiz by overnight mail so that he received if before the hearing.
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Thus, the Court is faced with the following situation:
Defendant clearly
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understands that it must be represented by counsel in federal court. Defendant clearly
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understands that default judgment will be entered if it is unrepresented. Defendant
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clearly understands that discovery was due on February 6, 2015, and that a second case
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management conference was to occur on that day. And Mr. Ramiz was directly ordered
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by the Court to participate in the February 6 hearing.
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Despite this knowledge, Mr. Ramiz failed to appear at the hearing as ordered,
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failed to provide the discovery due by February 6, and failed to communicate with
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counsel so as to enable counsel to litigate this case and participate in the second case
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management conference. Defendant did so knowing of counsel’s motion to withdraw
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and knowing that the withdrawal would result in a default judgment being entered.
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In addition to this situation, Plaintiff’s counsel explained that he has another case
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pending against Defendant in this court, CV-14-2705 PHX NVW. Defendant recently
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has failed to appear in that case as well.
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The Ninth Circuit has identified five factors that a district court must consider
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before dismissing a case or declaring a default: (1) the public’s interest in expeditious
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resolution of litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice
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to the other party; (4) the public policy favoring the disposition of cases on their merits;
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and (5) the availability of less drastic sanctions. Dreith v. Nu Image, Inc., 648 F.3d 779,
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788 (9th Cir. 2011). The first three factors favor entry of a default judgment in this case.
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This litigation has already been delayed by Defendant’s problems with counsel and its
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failure to comply with discovery obligations; the Court cannot effectively manage its
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docket when a party presents repeated and rapid withdrawals of counsel and refuses to
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appear and participate in hearings when ordered; and Plaintiff is prejudiced when
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discovery receives no response and the case is delayed by Defendant’s inaction. The
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Fourth factor, as always, weighs against default. The fifth factor urges caution, but when
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two counsel have withdrawn in the last two months, deadlines have been missed, and
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Defendant has disregarded a clear order to participate in a hearing, the Court is persuaded
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that additional steps would only result in further similar conduct. The Court accordingly
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finds that the relevant factors weigh in favor of default.
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IT IS ORDERED:
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Defense counsel’s motion to withdraw (Doc. 29) is granted.
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The Court will enter default judgment against Defendant.
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Plaintiff shall, by February 20, 2015, submit a proposed form of judgment
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with evidence supporting the damages and other relief requested in the
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proposed order.
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Dated this 9th day of February, 2015.
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