North American Specialty Insurance Company v. Campbell et al

Filing 49

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/20/2010 ORDERING that the hearing on 23 Motion for Default Judgment is continued to 3/3/2010 at 10:00 AM in Courtroom 24 (EFB) before Magistrate Judge Edmund F. Brennan; all remaining deadline s set forth in 47 Order are VACATED; Campbell and JC Show Horses LLC are ordered to SHOW CAUSE by 2/10/2010 as to why one or both should not be sanctioned for failing to comply with 47 Order; Campbell and/or JC Show Horses LLC shall also file opp osition or non-opposition to pltf's motion and/or shall file request that Court set aside Clerk's 8/26/09 entry of default by 2/10/2010; subsequent filing dates listed within Order; Clerk is directed to serve a copy of this Order on dfts Campbell and JC Show Horses LLC. (Suttles, J)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA NORTH AMERICAN SPECIALTY INSURANCE COMPANY, Plaintiff, vs. JOSEPH C. CAMPBELL, individually and also known as JOE CAMPBELL, and JOSEPH CHARLES CAMPBELL, and dba JC SHOW HORSES; JC SHOW HORSES, LLC; and DEBORAH SAUERS, individually, Defendants. / This case was referred to the undersigned pursuant to Eastern District of California Local Rule 302(c)(19) and 28 U.S.C. § 636(b)(1) for hearing on plaintiff's motion for entry of default judgment against defendants Joseph Campbell and JC Show Horses LLC ("defendants"). The motion for default judgment was originally scheduled for hearing on November 25, 2009, but defendants failed to file an opposition to the motion or otherwise appear in this action. Accordingly, on November 24, 2009, the matter was ordered submitted without oral argument pursuant to Local Rule 230. Dckt. No. 44. However, on the date of the scheduled hearing, Campbell appeared for oral argument and spoke with the court's courtroom deputy clerk. That 1 No. CIV S-09-2061 GEB EFB

ORDER AND ORDER TO SHOW CAUSE

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

same day, Campbell filed a document entitled "answer," in which he denies the allegations in plaintiff's complaint, contends that he was not properly served with the summons, and asserts that he has been attempting to retain an attorney to represent him in this action. Dckt. No. 46. He also requested time to raise the "balance of the funds necessary to retain [counsel]" but did not indicate how much time he needed to do so. Id. In light of Campbell's November 25, 2009 filing, the court issued an order on December 3, 2009, rescheduling the hearing on plaintiff's motion for January 27, 2010. Dckt. No. 47. The court stated that "[o]n or before January 6, 2010, Campbell and/or JC Show Horses, LLC shall file an opposition or a statement of non-opposition to plaintiff's motion and/or shall file a request that the court set aside the Clerk's August 26, 2009 entry of default." Id. The order included a citation to Federal Rule of Civil Procedure 55(c), and stated that "[i]f Campbell and/or JC Show Horses, LLC requests that the court set aside the Clerk's entry of default judgment, that request shall also be noticed for hearing on January 27, 2010." Id. Court records reflect that neither Campbell nor JC Show Horses, LLC has filed an opposition or a statement of non-opposition to plaintiff's motion and/or a request that the court set aside the Clerk's August 26, 2009 entry of default, as required by the court's December 3, 2009 order. Although Campbell has called the undersigned's courtroom deputy clerk indicating that he is unsure what to file or how to do so, his obligations to comply with the December 3, 2009 order have not been excused.1 Pro se litigants are bound by the rules of procedure, even though pleadings are liberally construed in their favor. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Local Rule 230(c) provides that "[n]o party will be entitled to be heard in opposition to a motion at oral arguments if opposition to the motion has not been timely filed by that party." Additionally, Local Rule 110 provides that failure to comply with the Local Rules or with an order of the court "may be grounds for imposition by the Court of any and all sanctions

1

Campbell is admonished that neither the court nor its staff may give legal advice. 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

authorized by statute or Rule or within the inherent power of the Court." See also E.D. Cal. L.R. 183 (governing persons appearing in pro se and providing that failure to comply with the Federal Rules of Civil Procedure and Local Rules may be ground for dismissal, judgment by default, or other appropriate sanction); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) ("Failure to follow a district court's local rules is a proper ground for dismissal."). Accordingly, good cause appearing, IT IS HEREBY ORDERED that: 1. The hearing on plaintiff's motion for default judgment, Dckt. No. 23, currently set for January 27, 2010 is continued to March 3, 2010, at 10:00 a.m., in Courtroom No. 24, and all remaining deadlines set forth in the December 3, 2009 order are vacated. 2. On or before February 10, 2010, Campbell and JC Show Horses LLC shall show cause in writing why one or both of them should not be sanctioned for failing to comply with the December 3, 2009 order. 3. On or before February 10, 2010, Campbell and/or JC Show Horses LLC shall also file an opposition or a statement of non-opposition to plaintiff's motion and/or shall file a request that the court set aside the Clerk's August 26, 2009 entry of default. 4. On or before February 17, 2010, plaintiff shall file a response to any opposition and/or any request to set aside default filed by Campbell and/or JC Show Horses LLC, and shall indicate the effect of Campbell's November 25, 2009 filing and any subsequent filing(s) by Campbell and/or JC Show Horses LLC on plaintiff's motion for default judgment. 5. If Campbell and/or JC Show Horses LLC files a request to set aside the Clerk's entry of default, Campbell and/or JC Show Horses LLC may file a reply to plaintiff's opposition thereto on or before February 24, 2010. 6. If Campbell and/or JC Show Horses LLC fails to comply with this order, the March 3, 2010 hearing will be vacated, sanctions may be imposed against Campbell and/or JC Show Horses LLC, and default judgment may be entered against one or both of those defendants. //// 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

7. The Clerk is directed to serve a copy of this order on defendants Campbell and JC Show Horses LLC at the following address: 15151 E. Tokay Colony Road, Lodi, California 95240.2 DATED: January 20, 2010.

Although defendant JC Show Horses, LLC has not appeared in this action or provided the court with its proper address, plaintiff alleges that Campbell is JC Show Horses, LLC's sole representative and agent. Dckt. No. 24 at 5.

2