Rigsby et al v. Intercare Specialty Risk Insurance Services, Inc. , et al.,

Filing 137

ORDER signed by District Judge Morrison C. England, Jr on 11/8/18 DISMISSING ISR Holdings, Inc.'s Cross Complaint 34 , as amended by its First Amended Counterclaim 111 , for lack of prosecution. A hearing on Plaintiffs' Application for default judgment pursuant to Federal Rule 55(b)(2) is hereby SET for 11 a.m. on Monday, 12/3/2018 at 11:00 AM. (Mena-Sanchez, L)

1
2
3
4
5

ROBERT R. RIGGS (SBN 107684)
Katzoff & Riggs LLP
1500 Park Avenue, Suite 300
Emeryville, CA 94608
Tel. [phone]
email: [e-mail]
Attorneys for Plaintiffs KAREN RIGSBY,
Trustee, and DONALD P. STEINMEYER

6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA – SACRAMENTO DIVISION

9
10
11

KAREN RIGSBY, Trustee of the
MARSH REVOCABLE TRUST OF
2003, et al.,
Plaintiffs,

12
13
14
15
16
17
18
19
20
21
22

vs.
INTERCARE SPECIALITY RISK
INSURANCE SERVICES, INC, et al.,
Defendants.
________________________________

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 2:17-cv-01347-MCE-EFB
ORDER AFTER STATUS
CONFERENCE

This matter came before the Court for status conference on November 1, 2018, at
11:00 a.m., based on the Court’s Minute Order of October 22, 2018 at ECF No. 130,
which required the personal appearance of all parties including defendant Kevin Hamm,
in pro se. Robert Riggs appeared for the Plaintiffs, Karen Rigsby and Donald Steinmeyer.
Proof was made that the Court’s Minute Order was served by the Clerk on defendant
Kevin Hamm at his address of record, c/o ISR Holdings, Inc., 140 Diamond Creek Place,
________________________________________________________
1
ORDER AFTER STATUS CONFERENCE

1

Roseville, CA 95747. Defendant Kevin Hamm did not appear. Defendants ISR Holdings,

2

Inc., formerly named Intercare Specialty Risk Insurance Services, Inc., and Phoenix Risk

3

Management, Inc. did not appear.

4

The Court, in its order entered herein July 3, 2018, has previously cautioned

5

defendants ISR Holdings, Inc. and Phoenix Risk Management, Inc. that they cannot make

6

any further appearance in this matter without counsel appearing on their behalf. Despite

7

this warning, defendants ISR Holdings, Inc. and Phoenix Risk Management, Inc., have

8

not appeared through counsel for four months. Entry of the default of these defendants,

9

due to their failure to appear in this action despite the Court’s warning, is proper at this

10

time. Employee Painters’ Trust v. Ethan Enterprises, Inc., 480 F.3d 993, 998 (9th Cir.

11

2007); Board of Trustees of IBEW Local Union No. 100 Pension Trust Fund v. Porges,

12

2013 WL 4012009, *4 [2013 U.S. Dist. LEXIS 110643] (E.D. Cal. 2013).

13

Additionally, the dismissal of the Counterclaim of Defendant ISR Holdings, Inc.

14

pursuant to Federal Rule 41(b) is warranted at this time. Such dismissal is warranted here

15

based on (1) the general public interest in expeditious resolution of litigation, (2) this

16

Court’s need to manage its docket, and (3) the prejudice to Plaintiffs from the failure of

17

ISR Holdings, Inc. to appear and prosecute this matter diligently. E.g., Ken-Mac Metals

18

v. Inependent Sheet Metal, Inc., 2011 U.S. Dist. LEXIS 53706 [2011 WL 1937135], at *5

19

- *8 (D. Nev. 2011).

20

Good cause appearing, IT IS HEREBY ORDERED as follows:

21

1.

22

Default is hereby entered as to Defendants Phoenix Risk Management, Inc.

and ISR Holdings, Inc.
________________________________________________________
2
ORDER AFTER STATUS CONFERENCE

1
2
3

2.

ISR Holdings, Inc.’s Cross Complaint at ECF No. 34, as amended by its

First Amended Counterclaim at ECF No. 111, is hereby dismissed for lack of prosecution.
3.

All current hearings and due dates established by the Court’s Initial Pretrial

4

Scheduling Order at ECF No. 4, as amended by the Joint Report of the Parties Outlining

5

Discovery Plan and Order Thereon at ECF No. 75, and the Stipulation and Order to

6

Modify Initial Pretrial Scheduling Order and Joint Report of the Parties Outlining

7

Discovery Plan, at ECF No. 104, are hereby vacated.

8
9
10
11

4.

A hearing on Plaintiffs’ application for default judgment pursuant to

Federal Rule 55(b)(2) is hereby set for 11 a.m. on Monday, December 3, 2018.
IT IS SO ORDERED.
Dated: November 8, 2018

12
13
14
15
16
17
18
19
20
21
22
________________________________________________________
3
ORDER AFTER STATUS CONFERENCE