Nshimba v. Lowe's Home Improvement Warehouse, Inc. et al

Filing 63

ORDER GRANTING MOTION REOPEN ACTION AND TO PERMIT PLAINTIFF TO APPEAR PRO SE. Further Case Management Conference set for 2/16/2012 10:00 AM in Courtroom 3, 17th Floor, San Francisco. Signed by Judge Richard Seeborg on 1/11/12. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 1/12/2012)

*E-Filed 1/12/12*

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

SAN FRANCISCO DIVISION

11
For the Northern District of California

United States District Court

10

12

LINO NSHIMBA,

13
14
15

Plaintiff,
v.

No. C 10-2982 RS
ORDER GRANTING MOTION TO
REOPEN ACTION AND TO PERMIT
PLAINTIFF TO APPEAR IN PRO SE

LOWE’S HOME IMPROVEMENT
WAREHOUSE, INC., et al.,

16
17

Defendants.
____________________________________/

18
19

On December 9, 2011 this action was dismissed pursuant to Rule 37(b)(2)(A)(v) of the

20

Federal Rules of Civil Procedure, as a sanction for plaintiff’s failure to comply with discovery

21

obligations. The dismissal order expressly declined to enter default judgment against plaintiff, and

22

provided that the dismissal was without prejudice, because the record did not permit a determination

23

as to the extent to which, if any, plaintiff, as opposed to his counsel, was at fault. Plaintiff, acting

24

without counsel, has now filed a motion to reopen the case and to substitute himself in pro se in the

25

place of his counsel of record. Plaintiff asserts that while he had repeated difficulties reaching his

26

counsel to obtain information regarding the status of this case, counsel had reassured him that it was

27

proceeding normally and that there was nothing else he needed to do. Plaintiff contends he only

28
NO. C 10-2982 RS
ORDER

1

learned this action had been dismissed when he made independent inquiries to Court staff.

2

Plaintiffs’ assertions are plausible in light of the conduct of his attorney reflected in the record.

3

Defendant has opposed the motion to reopen, relying on West Coast Theater Corp. v. City of

attorney may be imputed to, and their consequences visited upon, his or her client. Id. at 1523.

6

West Coast, however, in turn relied on In re Hill, 775 F.2d 1385 (9th Cir. 1985), which more fully

7

explained that where “the impact of the sanction imposed is primarily against the client,” discretion

8

should be exercised with caution. Id. at 1387. In the analogous context of dismissal under Rule

9

41(b) for failure to prosecute or to comply with a court order, the Hill court observed, “[a]pplication

10

of the remedy rests within the sound discretion of the court, but since it may severely punish a party

11
For the Northern District of California

Portland, 897 F.2d 1519 (9th Cir. 1990) for the proposition that, “the faults and defaults of the

5

United States District Court

4

not responsible for the alleged dereliction of his counsel, the Rule should only be invoked in

12

extreme circumstances.” Id. (quoting Industrial Bldg. Materials, Inc. v. Interchemical Corp., 437

13

F.2d 1336 (9th Cir. 1970)).

14

Accordingly, good cause appearing, plaintiff’s motion to reopen is granted, as is his motion

15

to substitute himself in pro se. The parties shall appear for a further Case Management Conference

16

on February 16, 2012, with a joint Case Conference Management Statement to be submitted one

17

week in advance. Plaintiff may wish to seek assistance from the Legal Help Center, a free service of

18

the Volunteer Legal Services Program, by calling 415/782.9000 x8657 or signing up for an

19

appointment on the 15th Floor of the Courthouse, Room 2796. At the Legal Help Center, plaintiff

20

may speak with an attorney who may be able to provide basic legal help but not legal representation.

21
22

IT IS SO ORDERED.

23
24
25

Dated: 1/11/12
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

26
27
28

2