Subramanian v. QAD Inc.

Filing 226

ORDER re 221 Order dismissing all plaintiff's claims against defendants. (vrwlc1, COURT STAFF) (Filed on 2/6/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

MANI SUBRAMANIAN, Plaintiff, v QAD INC, WILLIAM D CONNELL, AND DOES 1-50, Defendants. /

No

C 06-3050 VRW ORDER

On January 12, 2009, the court issued an order ("OSC") for plaintiff Mani Subramanian ("Subramanian") to show cause why the above-captioned case should not be dismissed under FRCP 41(b) for Subramanian's failure to prosecute. Doc #221. Subramanian Defendant

responded to the OSC on January 22, 2009. QAD ("QAD") replied on January 29, 2009. filed a reply on February 2, 2009.

Doc # 222. Doc #224.

Subramanian

Doc #225.

As explained below,

after reviewing Subramanian's submissions, the court is satisfied that he has not shown cause why the case should not be dismissed. The court issued the OSC after Subramanian failed to appear at a case management conference ("CMC") necessary to resolve ongoing discovery disputes between the parties. Doc #221. The

court noted further that Subramanian was not in compliance with a court order ordering him to pay attorneys' fees. Id at 2. The

court referenced QAD's allegation that Subramanian had failed to

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appear at two scheduled depositions.

Id.

Finally, the court noted

that Subramanian's failure to appear is all the more egregious in light of the numerous motions he has filed. Id.

Subramanian's twenty-nine page response and ten page reply to the OSC contain relatively little that addresses the court's concerns. First, Subramanian explains that he did not

appear at the CMC because be believed he had retained counsel and further believed that counsel would appear for him at the CMC. #222 at 2. Doc

Subramanian does not provide details regarding why the

attorney failed to appear other than to say it was the result of an "apparent confusion." Id. Subramanian explains that due to his

"physical and mental exhaustion" he could not attend the CMC himself. Id at 10. The court finds Subramanian's explanation problematic. As a preliminary matter, the court is troubled that Subramanian notified neither the court nor opposing counsel that he would be represented by an attorney at the CMC. See Doc #224 at 12.

Further, and more significantly, Subramanian uses only vague, conclusory assertions to explain the mix-up that led the attorney not to attend the CMC. See Doc #222 at 2 ("apparent confusion"), 8 Subramanian does not elaborate on this

("inadvertent confusion"). confusion in his reply.

Doc #225 at 7 ("evidence of plaintiff is

uncontradicted and legally sufficient for the purpose at hand"). Because Subramanian offers no explanation to the contrary, the court must conclude that Subramanian was responsible for the attorney's failure to attend the CMC. Additionally, Subramanian explains that he could not attend the CMC himself because of his "physical and mental 2

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exhaustion."

Doc #222 at 10.

Subramanian admits, however, that Id at 8-9.

his exhaustion developed well before the scheduled CMC.

Subramanian did not notify the court, nor did he notify opposing counsel, that he would not be able to attend because of his exhaustion. See Doc #224 at 6. Even if the court could consider

"exhaustion" good cause for failure to appear at a CMC, the court cannot excuse Subramanian's failure to appear without prior notice when Subramanian had the ability to inform the court or opposing counsel that he could not attend. Finally, Subramanian seems to argue that the court should consider his failure to appear as an isolated incident rather than as part of a larger pattern. See Doc #222 at 6-8. But even if the

court were to ignore Subramanian's contempt, Doc #221, or any allegations that Subramanian had not attended scheduled depositions, see Doc #224 at 5, the court would still have the authority to dismiss Subramanian's claims. In simple terms, the court asked Subramanian to explain his failure to appear at the CMC, and Subramanian's response offered no cogent explanation. Subramanian has thus not shown Accordingly,

cause why his claims should not be dismissed.

pursuant to FRCP 41(b), all Subramanian's claims in 06-3050 are hereby DISMISSED.

IT IS SO ORDERED.

VAUGHN R WALKER United States District Chief Judge 3