Board of Trustees of the Kern County Electrical Pension Fund et al v. Burgoni, et al
Filing
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ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS 55 , and AMENDED FINDINGS and RECOMMENDATIONS STRIKING DEFENDANTS' ANSWER AND ENTERING DEFAULT signed by Magistrate Judge Jennifer L. Thurston on 11/30/2011. Objections to F&R due by 12/14/2011. (Leon-Guerrero, A)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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BOARD OF TRUSTEES OF THE KERN ) Case No.: 1:08-cv-00498 LJO JLT
COUNTY ELECTRICAL PENSION FUND,
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et al.,
) ORDER WITHDRAWING FINDINGS AND
) RECOMMENDATIONS
Plaintiffs,
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) (Doc. 55)
v.
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) AMENDED FINDINGS AND
CHRISTOPHER BURGONI, et al.,
) RECOMMENDATIONS STRIKING
) DEFENDANTS’ ANSWER AND ENTERING
Defendants.
) DEFAULT DUE TO THEIR FAILURE TO
_______________________________________ ) COMPLY WITH THE COURT’S ORDERS
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In this matter, Plaintiff has sued an individual, Christopher Burgoni, and two corporations;
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Tadoc Enterprises and Fulce Enterprises. (Doc. 36). For the following reasons, the Court
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recommends Defendants’ answer be STRICKEN and that DEFAULT BE ENTERED.
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I. Background
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Initially, Defendants appeared through counsel and answered the First Amended Complaint
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on July 22, 2010. (Doc. 38) On July 6, 2011, the Court granted the request of Defendants’ attorneys
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to withdraw from their representation. (Doc. 46) On September 29, 2011, withdrawn counsel served
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Defendants notice of the Court’s order granting the requested withdrawal. (Docs. 49-50)
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In the meantime, on September 14, 2011, the Court issued its Order of Reassignment, in
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which the Court informed the parties that the assignment of the action to Senior U.S. District Judge
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Wanger was withdrawn. (Doc. 47). The parties were ordered “to affirmatively indicate whether they
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consent to or decline the consent of the U.S. Magistrate Judge pursuant to 28 USC § 636 (c) . . .
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WITHIN 30 DAYS OF THIS ORDER.” Id. at 2 (emphasis in original). Consequently, the parties
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were to file the form attached to the order, indicating their consent or decline no later than October
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14, 2011. The parties were warned: “Failure to timely comply with this order will result in an Order
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to Show Cause and may result in sanctions.” (Doc. 47 at 2). The Local Rules, corresponding with
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Fed. R. Civ. P. 11, provide: “Failure of counsel or of a party to comply with . . . any order of the
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Court may be grounds for the imposition by the Court of any and all sanctions . . . within the inherent
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power of the Court.” LR 110. Further, a court may impose sanctions in exercising the “inherent
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power to control [its] dockets.” Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831
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(9th Cir. 1986). To date, defendants Christopher Burgoni, Tadoc Enterprises, and Fulce Enterprises
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(collectively, “Defendants”) have failed to comply with the Court’s Order.
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On October 6, 2011, the Court ordered the corporate defendants, Tadoc Enterprises, and
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Fulce Enterprises, to have their replacement counsel enter an appearance within 21 days. (Doc. 51)
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Due to an error in the caption, on October 18, 2011, the Court’s issued its amended order to Tadoc
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Enterprises and Fulce Enterprises, to have their replacement counsel enter an appearance within 21
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days. (Doc. 52) As of the signing of this order, no appearance has been entered on behalf of either
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corporate defendant.
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Also on October 18, 2011, the Court issued an order to all of the defendants to show cause
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within 14 days why their answer should not be stricken based upon their failure to file the form
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indicating whether they consented to Magistrate Judge jurisdiction. (Doc. 53) To date, Defendants
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have failed to comply with or otherwise respond to the Court’s Orders.
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II. Failure to obey the Court’s orders
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The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a
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party to comply with . . . any order of the Court may be grounds for the imposition by the Court of
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any and all sanctions . . . within the inherent power of the Court.” LR 110. “District courts have
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inherent power to control their dockets,” and in exercising that power, a court may impose sanctions
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including dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831
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(9th Cir. 1986). A court may dismiss an action with prejudice, based on a party’s failure to prosecute
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an action or failure to obey a court order, or failure to comply with local rules. See, e.g. Ferdik v.
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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order
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requiring amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir.
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1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421,
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1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules).
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III. Discussion and Analysis
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“It is a longstanding rule that [c]orporations and other unincorporated associations must
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appear in court through an attorney.” D-Beam Ltd. P’ship v. Roller Derby Skates, Inc., 366 F.3d 972,
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973-74 (9th Cir. 2004) (citation and quotation marks omitted, second modification in original); LR
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183(a). Further, a court may sanction corporate defendants by striking their answer when they fail to
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retain counsel to defend themselves. See Galtieri-Carlson v. Victoria M. Morton Enters., Inc., 2010
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U.S. Dist. LEXIS 95335, at *3 (E.D. Cal. Aug. 26, 2010) (sanctioning corporate defendants by
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striking their answer when they failed to retain alternate counsel after the withdrawal of their original
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counsel); Rojas v. Hawgs Seafood Bar, Inc., 2009 U.S. Dist. LEXIS 41435 at *2 (N.D. Cal. May 5,
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2009) (“When a corporation fails to retain counsel to represent it in an action, its answer may be
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stricken and a default judgment entered against it”).
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Pursuant to the local rule and applicable case law, the corporate defendants may not appear in
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this case without counsel. The corporate defendants’ original counsel withdrew in July2011 and the
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corporate defendants have failed to retain alternate counsel since that date. This inaction is in direct
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violation of the court’s order. As such, the corporate defendants’ answer is recommended to be
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stricken and default entered against them.
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Moreover, all three defendants were warned that their failure to comply with the Court’s
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order to file a notification regarding Magistrate Judge jurisdiction would result in sanctions. (Doc.
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47 at 2) This warning was echoed in the Court’s order to show cause issued on October 18, 2011 in
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which the Court warned that failure to timely comply with the would result in the imposition of “any
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and all sanctions . . . within the inherent power of the Court.” As such, the Court recommends that
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all defendants’ answers be stricken and default entered against them.
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IV. Findings and Recommendations
The corporate defendants failed to comply with the Court’s order to appear through counsel.
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Moreover, all of the defendants failed to comply with the Court’s order to consent to or decline the
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jurisdiction of a magistrate judge, and the Court’s order to show cause why the matter should not be
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dismissed. Accordingly, it is HEREBY RECOMMENDED:
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Defendants’ Answer to the Amended Complaint be STRICKEN and DEFAULT BE
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ENTERED against them for their failure to obey the Court’s orders dated September
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14, 2011 and October 18, 2011.
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These Findings and Recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the
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Local Rules of Practice for the United States District Court, Eastern District of California. Within
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14 days after being served with these Findings and Recommendations, Plaintiff may file written
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objections with the Court. Such a document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d
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1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated: November 30, 2011
9j7khi
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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