AF Holding, LLC v. Doe

Filing 53

ORDER DISMISSING CASE WITH PREJUDICE for failure to post undertaking. Signed by Judge Samuel Conti on 5/30/2013. (sclc2, COURT STAFF) (Filed on 5/30/2013)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE NORTHERN DISTRICT OF CALIFORNIA

8

United States District Court

For the Northern District of California

9
10

AF HOLDINGS, LLC,
Plaintiff,

11
12
13

v.
ANDREW MAGSUMBOL,
Defendant.

14

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

Case No. 12-4221 SC
ORDER DISMISSING PLAINTIFF'S
ACTION FOR FAILURE TO POST
UNDERTAKING

15
16

This is a copyright infringement action.

Plaintiff AF

17

Holdings, LLC ("Plaintiff") is a foreign corporation, organized

18

under the laws of Saint Kitts and Nevis.

19

Defendant Andrew Magsumbol ("Defendant") is a California resident.

20

Id. ¶ 4.

21

copyright of one of Plaintiff's works.

22

ECF No. 12 ("FAC") ¶ 2.

Plaintiff sued Defendant alleging that he infringed the
See id. ¶ 1.

On January 1, 2013, Defendant moved to require Plaintiff to

23

post an undertaking. ECF No. 20 ("Mot.").

24

power to do so, subject to California law.

25

v. Ramada Hotel Operating Co., 37 F.3d 573, 574 (9th Cir. 1994).

26

California law permits courts to require foreign corporations to

27

post an undertaking when suing California citizens, provided that

28

the citizen defendant shows a reasonable possibility of obtaining a

The Court has inherent
See Simulnet E. Assocs.

1

judgment in the case.

2

purpose of this statute is to "enable a California resident sued by

3

an out-of-state resident to secure costs in light of the difficulty

4

of enforcing a judgment for costs against a person who is not

5

within the court's jurisdiction . . . [and] prevent out-of-state

6

residents from filing frivolous lawsuits against California

7

residents."

8

Ct. App. 2009) (internal quotation marks and citations omitted).

9

See Cal. Civ. Proc. Code § 1030.

The

Alshafie v. Lallande, 171 Cal. App. 4th 421, 428 (Cal

On March 18, 2013, the Court found that Defendant made the

United States District Court

For the Northern District of California

10

requisite showing and accordingly required Plaintiff to post a

11

$50,000 undertaking.

12

stated that Plaintiff would have thirty days to post the

13

undertaking, or else its case could be dismissed with prejudice.

14

Id. at 5.

15

ECF No. 45 ("Order") at 4-5.

The Court

More than thirty days have passed since the Court required

16

Plaintiff to post an undertaking, and Plaintiff has not complied.

17

Nor does it express any intention or desire to do so.

18

Plaintiff's attorneys "anticipate this case will be dismissed in

19

the near future for failure to post this amount."

20

("Pl.'s Case Mgmt. Stmt.").

Indeed,

ECF No. 51

21

They are right.

Plaintiff's refusal to post the undertaking

22

is grounds for dismissal.

23

915 n.4 (Cal. 1986) (en banc) (noting that a ground for dismissal

24

with prejudice under a court's inherent powers includes

25

"plaintiff's failure to give security for costs"); see also, e.g.,

26

Atlanta Shipping Corp., Inc. v. Chem. Bank, 818 F.2d 240, 245, 252

27

(2d Cir. 1987) (affirming lower court's dismissal for failure to

28

post security).

See Lyons v. Wickhorst, 42 Cal. 3d 911,

2

1

This case is DISMISSED WITH PREJUDICE.

Plaintiff's motions to

2

substitute and withdraw counsel, ECF No. 43, and to continue the

3

case management conference, ECF No. 49, are DENIED AS MOOT.

4
5

IT IS SO ORDERED.

6
7

Dated: May 30, 2013

8

UNITED STATES DISTRICT JUDGE

9

United States District Court

For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3