Lyon v. Bergstrom Law, Ltd.

Filing 35

ORDER Adopting 31 FINDINGS AND RECOMMENDATIONS signed by District Judge Dale A. Drozd on 3/29/2017. (Sant Agata, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11 NICOLE LYON,
12
13

No. 1:16-cv-00401-DAD-SKO
Plaintiff,

v.

14 BERGSTROM LAW, LTD.,
15

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS
(Doc. No. 31)

Defendant.

16
17

Plaintiff Nicole Lyon filed this action on March 24, 2016, alleging claims for damages

18 against defendant Bergstrom Law Ltd., a law firm, for violations of (1) the Fair Debt Collections
19 Practices Act (“FDCPA”), 15 U.S.C. §§ et seq., and (2) the Rosenthal Fair Debt Collection
20 Practices Act (“Rosenthal Act”), Cal. Civ. Code §§ 1788-1788.32. (Doc. No. 1.) On January 17,
21 2017, the assigned magistrate judge issued findings and recommendations recommending that
22 defendant’s answer be stricken and the Clerk of Court be directed to enter default against
23 defendant. (Doc. No. 31.) The findings and recommendations were served on defendant’s current
24 counsel of record via the Court’s Case Management/Electronic Case File system, see Local Rules
25 135 and 137, with instructions that any objections thereto must be filed by January 31, 2017.
26 /////
27 /////
28 /////

On January 19, 2017, defendant’s counsel of record, Katherine Heidbrink, filed a

1

2 “Declaration Regarding Representation.” (Doc. No. 32.)1 The court will construe this filing as
3 defendant’s objections to the pending findings and recommendations, however, defendant’s
4 counsel’s filing does not discuss any of the underlying issues addressed in the pending findings
5 and recommendations and provides no basis upon which the court should decline to adopt them.
6 (Doc. No. 31.) As such, plaintiff’s objections to defendant’s filing (Doc. No. 33) are overruled.
7

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a

8 de novo review of the case. Having carefully reviewed the entire file, the court finds that the
9 findings and recommendations are supported by the record and proper analysis.
10

Accordingly,

11

1. The January 17, 2017 findings and recommendations (Doc. No. 31) are adopted in full;

12

2. Defendant’s answer (Doc. 19) is stricken; and

13 /////
14 /////
15
1

16
17
18
19
20
21
22
23
24
25
26

In that filing attorney Heidbrink states that as of July 19, 2016, she is no longer employed by
defendant, that she and defendant agreed that defendant “would have its new counsel substitute
into all of [her] existing cases as quickly as possible,” and that “she is not authorized to file on
behalf of [defendant] or withdraw its appearance in this case.” (Doc. No. 32 ¶¶ 4, 8, 14.) The
docket reflects, however, that attorney Heidbrink has neither submitted a “substitution of
attorneys” under Local Rule 182(g), nor filed a motion for leave to withdraw as counsel of record
pursuant to Local Rule 182(d). Until she either substitutes another attorney into this action on
defendant’s behalf or is granted leave to withdraw, attorney Heidbrink continues to serve as
defendant’s counsel of record, regardless of her employment status. To the extent that attorney
Heidbrink is suggesting that defendant was not served with the court’s findings and
recommendations through the Court’s CM/ECF system, that suggestion is belied by her own
declaration in which she states:
[Defendant]’s employees set up a system wherein both the firm and
I would receive email notification regarding any filing in any case
that used my e-filing credentials. For instance, my e-filing
credentials for this court send email notice directly to my personal
email ([e-mail]), as well as to [defendant] (at
[e-mail]).

27 (Doc. No. 32 ¶ 8; see also id. ¶ 10 (“Additionally, since leaving [defendant], I have promptly
forwarded notice intended for my former firm in whatever form is appropriate. This includes ECF
28
notifications for pleadings in this case.”).
2

1

3. The Clerk of Court is directed to enter default against defendant.

2
3
4

IT IS SO ORDERED.
Dated:

March 29, 2017
UNITED STATES DISTRICT JUDGE

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3