The Mitchell Law Group v. OCC Venture LLC et al

Filing 40

ORDER DENYING PLAINTIFF'S MOTION TO STRIKE COUNTERCLAIMS AND NOTICE OF RELATED CASE; DIRECTING RONALD D. SCHIVO TO COMPLY WITH GENERAL ORDER 45; VACATING DECEMBER 11, 2009 HEARING. Plaintiff's motion to strike the counterclaim and the notic e of related case is denied. Ronald D. Schivo is directed to become an ECF User, and, specifically, to apply to the Clerk of the Court, no later than December 18, 2009, for a user ID and password, and to file, by December 18, 2009, a declaration indicating his compliance with such order. Signed by Judge Maxine M. Chesney on December 8, 2009. (mmclc1, COURT STAFF) (Filed on 12/8/2009)

1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Before the Court is plaintiff The Mitchell Law Group's ("Mitchell") "Motion to Strike the Counterclaims and Notice of Related Case Filed October 1, 2009 by Paul Utrecht on Behalf of OCC Venture LLC," filed October 21, 2009. Counterclaimant OCC Venture LLC ("OCC Venture") has filed opposition, to which plaintiff has replied. Having read and considered the papers filed in support of and in opposition to the motion, the Court deems the matter suitable for decision on the parties' respective filings, VACATES the hearing scheduled for December 11, 2009, and rules as follows. On August 17, 2009, OCC Venture first appeared in the instant action by filing a motion to dismiss eight claims in Mitchell's initial complaint; the motion to dismiss was signed and electronically filed by Michele Kirrance ("Kirrance") of the law firm of LeClairRyan LLP ("LeClairRyan"). Thereafter, on October 1, 2009, OCC Venture filed its Counterclaim for Breach of Lease and Common Counts and, in addition, a Notice of v. OCC VENTURE LLC, Defendant / THE MITCHELL LAW GROUP, Plaintiff, No. C-09-3466 MMC ORDER DENYING PLAINTIFF'S MOTION TO STRIKE COUNTERCLAIMS AND NOTICE OF RELATED CASE; DIRECTING RONALD D. SCHIVO TO COMPLY WITH GENERAL ORDER 45; VACATING DECEMBER 11, 2009 HEARING United States District Court IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Related Case ("October 1, 2009 Filings"). Each of the October 1, 2009 Filings includes a scanned image of the signature of Ronald D. Schivo ("Schivo"), an attorney with the law firm of Zacks & Utrecht, P.C. ("Zacks & Utrecht"), and the docket reflects that said documents were electronically filed by Paul F. Utrecht ("Utrecht"), another attorney with Zacks & Utrecht, or a person using his User ID. In connection with the instant motion, OCC Venture has advised the Court that Schivo electronically filed the October 1, 2009 Filings using Utrecht's User ID, with Utrecht's permission. (See Schivo Decl., filed November 20, 2009, ¶ 4, Ex. B.) Mitchell argues that the October 1, 2009 Filings should be stricken for two separate reasons. First, Mitchell argues, the October 1, 2009 Filings violate Rule 11(a) of the Federal Rules of Civil Procedure. Rule 11(a) provides that "[e]very pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name," and that "[t]he court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention." See Fed. R. Civ. P. 11(a). Mitchell argues that the October 1, 2009 Filings are "unsigned" because, prior to the filing thereof, OCC Venture had not filed a notice of appearance to indicate it was being represented by Zacks & Utrecht. In light of events occurring subsequent to the above-referenced circumstances, however, the Court disagrees. Specifically, on October 13, 2009, counsel for Mitchell sent Utrecht an e-mail asserting that the October 1, 2009 Filings had "no legal effect" in the absence of a notice of appearance or a substitution of counsel. (See Mitchell Decl., filed October 21, 2009, ¶ 2 and first unnumbered exhibit thereto.) The same day, Kirrance filed an Association of Counsel, in which she stated: "LeClairRyan . . . hereby associates the law firm of Zacks & Utrecht [ ] as another counsel for defendant/ counterclaimant OCC Ventures." (See Association of Counsel, filed October 13, 2009, at 1:17-20.) In short, assuming, arguendo, the October 1, 2009 Filings were, on the date they were filed, "unsigned" by reason of the absence, at such time, of formal notification that OCC Venture was being represented by Zacks & Utrecht, such "omission" was "promptly 2

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corrected" on the very date it was brought to Zacks & Utrecht's attention. See Fed. R. Civ. P. 11(a). Second, Mitchell argues the October 1, 2009 Filings should be stricken because they were electronically filed in a manner that violated General Order No. 45. In particular, Mitchell argues, the signatory, Schivo, did not use his own User ID, but, rather, used Utrecht's User ID. General Order No. 45 provides, inter alia, that "[e]ach attorney of record is obligated to become an ECF User and be assigned a user ID and password for access to the system upon notification that the action is subject to ECF."1 See General Order No. 45, § IV.A. Mitchell argues that such provision implies that if, as here, a document is signed by a single attorney, that attorney must electronically file the document using his own User ID, as opposed to using the User ID of another attorney. OCC Ventures, however, relies on another provision of General Order No. 45, specifically, the section providing that "[a]n ECF User may authorize another person to file a document using the User ID and Password of the ECF User, and the ECF User shall retain full responsibility for any document so filed." See General Order No. 45, § IV.D. Because it is undisputed that Utrecht authorized Schivo to use Utrecht's User ID to electronically file the October 1, 2009 Filings, the Court declines to strike the October 1, 2009 Filings on account of Schivo's having failed to electronically file them using his own User ID. Accordingly, the motion to strike will be denied. The Clerk of the Court has indicated, however, that Schivo is not, at present, an EFC User, which, by reason of the Association of Counsel filed October 13, 2009, he is obligated to become should he wish to continue to appear herein on behalf of OCC Ventures. Accordingly, the Court will direct Schivo to comply with General Order No. 45 by obtaining his own User ID. // // On July 28, 2009, the date Mitchell filed the initial complaint, the Clerk designated the action for participation in the district court's ECF program. 3
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: December 8, 2009

CONCLUSION For the reasons stated above, the motion to strike is hereby DENIED. Ronald D. Schivo is hereby DIRECTED to become an ECF User, and, specifically, to apply to the Clerk of the Court, no later than December 18, 2009, for a user ID and password, and to file, by December 18, 2009, a declaration indicating his compliance with such order. IT IS SO ORDERED.

MAXINE M. CHESNEY United States District Judge

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