King et al v. Statebridge Company, LLC et al

Filing 8

ORDER signed by District Judge Morrison C. England, Jr. on 4/28/2017 ORDERING that this action is DISMISSED with prejudice. CASE CLOSED. (Zignago, K.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 JANINE DOUGLAS KING and STEVEN ELTON KING, Plaintiffs, 13 v. 14 15 16 No. 2:17-cv-00459-MCE-CKD ORDER STATEBRIDGE COMPANY, LLC; PONTUS INVESTMENT PORTFOLIO I, LLC; and DOES 1 through 50, Defendants. 17 18 Plaintiffs filed this breach of contract action in the Sacramento County Superior 19 Court on January 31, 2017. On March 1, 2017, Defendants removed the action to this 20 Court, ECF No. 1, and a week later filed a Motion to Dismiss, ECF No. 4. That motion 21 was set for hearing on April 6, 2017. In accordance with Eastern District of California 22 Local Rule 230(c), Plaintiffs were required to file an opposition or a statement of non- 23 opposition by March 23, 2017. They failed to do so, and the Court issued a Minute 24 Order on March 31, 2017, ordering Plaintiffs to show cause in writing within ten days why 25 the case should not be dismissed with prejudice. ECF No. 6. The Court warned that 26 “[a]bsent sufficient justification for Plaintiffs’ failure to adhere to the Local Rules, this 27 action will be dismissed.” Id. Plaintiffs responded to the order on April 10, 2017. ECF 28 No. 7. 1 1 Plaintiffs’ counsel Marc Applbaum of the Kettner Law Corporation blames his 2 failure to adhere to the Local Rules on his paralegal leaving the position in his office on 3 April 3, 2017. Resp. to Order to Show Cause (“OSC”), at 2. He further claims that it was 4 only “[u]pon going through the documents on her desk to prepare for her replacement 5 [that] we discovered this calendaring error.”1 Id. at 3. He also states that once he 6 discovered a deadline had been missed, he “took steps to correct the excusable 7 oversight.” Id. at 2. 8 First, the Court notes that as the attorney of record on this action, Applbaum is the 9 one ultimately responsible for ensuring that the Local Rules are complied with, not his 10 paralegal. Vaughn v. State Bar, 6 Cal. 3d 847, 857 (1972) (“[E]ven though an attorney 11 cannot be held responsible for every detail of office procedure, he must accept 12 responsibility to supervise the work of his staff.”). Second, the response to the OSC is 13 replete with errors and fails to adequately explain the circumstances surrounding the 14 missed deadline. For example, it claims that “Plaintiff[s] and Defendants were in the 15 process of settlement negotiations,” Resp. to OSC, at 3–4, and cites to Applbaum’s 16 concurrently filed declaration as support, but the declaration makes no mention of 17 settlement. The response specifically cites paragraph 5, but the attached declaration 18 only includes paragraphs one through four (and was oddly filed between pages three 19 and four of the response). The response also inexplicably focuses on Applbaum 20 assuming that service on Defendants was effective. See Resp. to OSC, at 2. But 21 sufficiency of service on Defendants was never at issue in this case, nor would it be 22 relevant to Plaintiffs’ failure to respond to Defendants’ motion to dismiss for failure to 23 state a claim and failure to join a necessary party.2 24 25 26 27 28 1 Though the veracity of this statement has no impact on the Court’s analysis, the Court notes that this assertion is difficult to believe. The Court’s minute order was issued on March 31, 2017, and Applbaum was sent an email notification through the Court’s CM/ECF system. It is not clear why Applbaum would have become aware of this email only by looking through the papers found on his former paralegal’s desk. 2 The Response also bizarrely claims that Defendants filed an answer, at one point claiming they did so on March 3, 2017, and later claiming they did so on July 21, 2015. Resp. to OSC at 2–3. Defendants have not filed an answer and no documents of any kind were filed on March 3, 2017 (or on 2 1 Finally, Applbaum’s excuses are conclusory and devoid of any detail. He claims 2 that he “took steps to correct the excusable oversight,” Resp. to OSC, at 2, but does not 3 say what those steps were. Indeed, to date no opposition has been filed. And that is not 4 to mention his assumption that the oversight was excusable. The Court ordered him to 5 provide sufficient justification to demonstrate that his oversight was excusable, not to 6 dictate the propriety of his errors to the Court. He has failed to do what the Court 7 ordered. 8 9 10 11 Because Plaintiffs have not shown that their failure to adhere to the Local Rules was justified, this action is DISMISSED with prejudice. IT IS SO ORDERED. Dated: April 28, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 July 21, 2015). 3

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