Johnson v. Chan et al

Filing 51

ORDER signed by Chief District Judge Kimberly J. Mueller on 6/2/2020 ACCORDINGLY Defendant Haneshinder Singh Chauhan has yet to respond to the court's notification as ordered. The court ORDERS plaintiff to move for default judgment against defe ndant Haneshinder Singh Chauhan before the assigned magistrate judge within 30 days of this order. Should plaintiff not do so, the court anticipates dismissing the case against defendant Haneshinder Singh Chauhan for failure to prosecute. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SCOTT JOHNSON,

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No. 2:17-cv-00138-KJM-AC

Plaintiff,
v.

ORDER

SIU KEUNG CHAN, et al.,
Defendants.

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This is an action for violations of the Americans with Disabilities Act of 1990

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(“ADA”) and California’s Unruh Civil Rights Act. Compl., ECF No. 1. The plaintiff is a C-5

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quadriplegic who uses a motorized wheelchair and has significant manual dexterity impairments.

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Id. The defendants own or owned the physical premises of a Subway restaurant located at 6530

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Florin Road, Sacramento, California. Id. ¶¶ 2–13; see also Answer, ECF No. 7.

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On July 1, 2019, plaintiff filed an ex parte application to vacate trial dates and

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order defendants to appear, contending that they could not reach defendants through their counsel

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of record, Mark T. Gallagher. Ex Parte Appl., ECF No. 29. The application stated that Mr.

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Gallagher had lost his license to practice law as of January 18, 2019, and the California State Bar

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was in the process of disbarring him for several ethics violations. Appl., Ex. 2, ECF No. 29-4.

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The court took notice of State Bar records reflecting that Mr. Gallagher defaulted at a State Bar

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Court proceeding on January 15, 2019. In the Matter of Mark T. Gallagher- #180514, 18-O1

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13772-CV (Cal. State Bar Ct., Jan. 15, 2019). The Supreme Court of California has since ordered

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Mr. Gallagher disbarred, on October 31, 2019. In re Mark T. Gallagher on Discipline, 18-O-

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13772-CV, slip op. S256339 (Cal. S. Ct. Oct. 31, 2019). Following plaintiff’s July 1 application

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and before Mr. Gallagher’s disbarment, on July 8, 2019, this court issued an order to show cause

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to Mr. Gallagher, which was returned as undeliverable. Order to Show Cause, ECF No. 30. On

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July 30, 2019, the court issued an order notifying defendants their counsel was ineligible to

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practice law and directing them to find new counsel or proceed pro se. Order, ECF No. 31.

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On August 12, 2019, defendants Siu Keung Chan and Rita Ngan Chan filed a

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consent order substituting Richard Morin in place of their previous counsel, Mr. Gallagher. ECF

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No. 32. On August 19, 2019, the court authorized Mr. Morin to substitute in as counsel of record

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for defendants. ECF No. 33. On August 29, 2019, defendants Siu Keung Chan and Rita Ngan

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Chan filed a motion for reconsideration of the court’s partial grant of summary judgment, ECF

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No. 34, and the court granted this motion on January 15, 2020, ECF No. 44. Upon the court’s

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ruling on the motion for reconsideration, the court referred plaintiff and defendants Siu Keung

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Chan and Rita Ngan Chan to this court’s ADR coordinator for a VDRP session to take place

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within 30 to 60 days. Reconsideration Order, ECF No. 44, at 6.

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While the other defendants responded to the court’s order regarding Mr.

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Gallagher’s ineligibility to represent them, defendant Haneshinder Singh Chauhan never filed a

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notice of substitution of attorney or a notice to proceed pro se. As a result, on March 6, 2020, the

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court issued a minute order directing plaintiff to notify the court of the last known place of

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residence for this defendant and to serve the defendant a copy of this court’s order within 45 days.

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ECF No. 47. Plaintiff provided the court with defendant Haneshinder Singh Chauhan’s address

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on March 30, 2020 and served the court’s order on defendant at the address on March 16, 2020.

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See ECF Nos. 48, 50.

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Defendant Haneshinder Singh Chauhan has yet to respond to the court’s

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notification as ordered. Accordingly, the court orders plaintiff to move for default judgment

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against defendant Haneshinder Singh Chauhan before the assigned magistrate judge within thirty

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(30) days of this order. Fed. R. Civ. P. 55(b)(2). Should plaintiff not do so, the court anticipates
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dismissing the case against defendant Haneshinder Singh Chauhan for failure to prosecute. Fed.

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R. Civ. P. 41(b).

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IT IS SO ORDERED.
DATED: June 2, 2020.

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