Jurin v. Google Inc.

Filing 23

RENEWED MOTION to STAY by Google, Inc. Motion Hearing set for 6/24/2010 at 02:00 PM in Courtroom 7 (MCE) before Judge Morrison C. England Jr. (Attachments: # 1 Declaration Margret M. Caruso)(Caruso, Margaret)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP Margret M. Caruso (Bar No. 243473) [e-mail] 2 Cheryl Galvin (Bar No. 252262) [e-mail] 3 Eman Sojoodi (Bar No. 261293) 4 [e-mail] 555 Twin Dolphin Drive, Fifth Floor 5 Redwood Shores, California 94065-2139 Telephone: [phone] Facsimile: [phone] 7 Attorneys for Defendant 8 9 10 11 12 DANIEL JURIN, an Individual, 13 14 vs. Plaintiff, CASE NO. 2:09-cv-03065-MCE-KJM GOOGLE INC.'S NOTICE OF RENEWED MOTION TO STAY, OR IN THE ALTERNATIVE, MOTION TO STRIKE JURIN'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: June 24, 2010 Time: 2 p.m. Judge: Morrison C. England, Jr. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION

15 GOOGLE INC., 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant.

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NOTICE OF MOTION AND RENEWED MOTION TO STAY, OR IN THE ALTERNATIVE, MOTION TO STRIKE JURIN'S COMPLAINT TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June 24, 2010, at 2 p.m. in Courtroom 7 of the United States District Court for the Eastern District of California, Sacramento Division, located at 501 I Street, Suite 4-200, Sacramento, CA, 95814, defendant Google Inc. ("Google") will and hereby does move for an order to stay the current proceedings until plaintiff Daniel Jurin ("Jurin") complies with the Court's order dated March 1, 2010 to pay Google's costs pursuant to Federal Rule of Civil Procedure 41(d) or in the alternative to strike Jurin's First Amended Complaint. This motion is based on the accompanying memorandum of points and authorities, all judicially noticeable facts, as well as the pleadings, records and files in this action.

DATED: April 4, 2010

QUINN EMANUEL URQUHART & SULLIVAN, LLP

By /s/Margret M. Caruso Margret M. Caruso Attorneys for Defendant Google Inc.

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GOOGLE INC.'S MOTION TO STAY OR STRIKE

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MEMORANDUM OF POINTS AND AUTHORITIES This Court previously ordered plaintiff Daniel Jurin ("Jurin") to pay defendant Google

3 Inc.'s ("Google") costs incurred in connection with Jurin's original suit pursuant to Fed. R. Civ. P. 4 41(d), for voluntarily dismissing his complaint before renewing the same allegations in the instant 5 suit. See Memorandum and Order at 12, Jurin v. Google Inc., Civ.No. 2:09-cv-03065-MCE-KJM 6 (Docket No. 19), March 1, 2010. The Court required Jurin to pay Google by March 22, 2010. Id. 7 at 13. To date, Jurin has failed to comply with the Court's order. 8 A conversation with Jurin's lawyer yielded no promise to pay by a date certain or even a

9 commitment that Jurin intends ever to comply with the Court's order. See Declaration of Margret 10 M. Caruso, ¶¶ 3-4, dated April 4, 2010. Under these circumstances, Google respectfully submits 11 that it should not be required to continue defending this action. Therefore, Google requests that 12 this matter be stayed until Jurin complies with the Court's order. Alternatively, Google requests 13 that this Court strike Jurin's First Amended Complaint, filed March 1, 2010 (Docket No. 21), in its 14 entirety as a sanction for failing to comply with the Court's order. 15 Fed. R. Civ. P. 41(d) grants federal courts "broad discretion" to grant a stay until the

16 plaintiff has complied with the Court's order to pay costs. See Esquivel v. Arau, 913 F.Supp. 17 1382, 1386 (C.D. Cal 1996). The purpose of Rule 41(d) is to deter vexatious litigation and to 18 shield a party who is entitled to costs from further litigation until those costs are paid. Id. at 1386 19 ("Rule 41(d) is intended to serve as a deterrent to forum shopping and vexatious litigation."); see 20 also Hacopian v. United States Dept. of Labor, 709 F.2d 1295, 1296 (9th Cir. 1983) ("This 21 practice was designed to prevent oppressive and vexatious litigation and also to enable a party 22 who has recovered costs to obtain payment before being subjected to further litigation relating to 23 the same subject-matter."). Jurin's failure to comply, or even to commit to comply, with this 24 Court's order warrants a stay of the current proceedings until Jurin pays Google's costs. 25 Alternatively, Google requests that this Court strike Jurin's First Amended Complaint as a

26 sanction for failure to comply with the Court's order. Federal courts are vested with inherent 27 powers to ensure obedience to their orders, including the power to, among other things, dismiss 28 cases. See Aloe Vera of America, Inc. v. U.S., 376 F.3d 960, 964-65 (9th Cir. 2004) (citing F.J. -1CASE NO. 2:09-cv-03065-MCE-KJM GOOGLE INC.'S MOTION TO STAY OR STRIKE

1 Hinshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1136 (9th Cir. 2001)). This 2 power includes imposing sanctions for a litigant's failure to pay previously imposed sanctions. 3 Hymes v. U.S., 993 F.2d 701, 702 (9th Cir. 1993) (dismissing appeal for failure to pay costs 4 imposed as sanction for bringing previous frivolous appeal) (citing Schiff v. Simon & Schuster, 5 Inc., 766 F.2d 61, 62 (2d Cir. 1985)). Further, Eastern District of California Local Rule 110 6 provides that a failure of counsel or a party to comply with a Court order may be grounds for the 7 imposition of "any and all sanctions authorized by statute or Rule or within the inherent power of 8 the Court." E.D. Cal. L.R. 110. As such, this Court has the inherent power to strike. 9 The remedy of striking Jurin's First Amended Complaint is warranted here. Jurin has

10 repeatedly displayed contempt for the judicial process in this action. He failed to comply with the 11 Court's order; he filed an amended complaint that did not address the very deficiencies identified 12 by the Court with his first complaint (see Google's Motion to Dismiss Jurin's First Amended 13 Complaint, filed April 4, 2010); and he failed to participate in the required Rule 26(f) conference 14 (see Status Report, filed Jan. 11, 2010, Docket No. 12). Jurin's actions (and inactions), even at 15 this early stage, leave Google with little optimism for a "just, speedy, and inexpensive 16 determination of [this] action." Fed. R. Civ. P. 1. 17 18 CONCLUSION For the foregoing reasons, the Court should stay the proceedings until Jurin complies with

19 the Court's order to pay Google's costs or strike Jurin's First Amended Complaint and dismiss the 20 action with prejudice. 21 DATED: April 4, 2010 22 23 24 25 26 27 28 -2CASE NO. 2:09-cv-03065-MCE-KJM GOOGLE INC.'S MOTION TO STAY OR STRIKE

QUINN EMANUEL URQUHART & SULLIVAN, LLP

By /s/Margret M. Caruso Margret M. Caruso Attorneys for Defendant Google Inc.

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CERTIFICATE OF SERVICE I certify that counsel of record who are deemed to have consented to electronic service are

3 being served on April 4, 2010 with a copy of this document via the Court's CM/ECF system per 4 Local Rule 135(a). 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3CASE NO. 2:09-cv-03065-MCE-KJM GOOGLE INC.'S MOTION TO STAY OR STRIKE

/s/ Margret M. Caruso Margret M. Caruso