Edward Rotstein, et al v. Terrafusion, Inc. et al

Filing 59

ORDER VACATING HEARING ON PLAINTIFFS MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT AND INSTRUCTING PLAINTIFFS TO PROCEED BY WAY OF DEFAULT. Signed by Judge Richard Seeborg on 2/14/17. (cl, COURT STAFF) (Filed on 2/14/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TERRAFUSION INTERNATIONAL, INC.,
et al.,
Plaintiffs,

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v.
TERRAFUSION, INC., et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 15-cv-02993-RS
ORDER VACATING HEARING ON
PLAINTIFFS’ MOTIONS TO DISMISS
AND FOR SUMMARY JUDGMENT
AND INSTRUCTING PLAINTIFFS TO
PROCEED BY WAY OF DEFAULT

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In May 2012, Plaintiffs Edward Rotstein and TerraFusion International, Inc. sued
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Terrafusion, Inc. over an asset purchase agreement gone awry. Terrafusion, Inc. and MCC
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Partners NY, LLC answered the complaint and countersued. In November 2016, Plaintiffs filed
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motions to dismiss and for summary judgment. Shortly thereafter, counsel for Defendants moved
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to withdraw and to continue the hearing on Plaintiffs’ pending motions. Plaintiffs strongly

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opposed the continuance, arguing that the case is almost five years old and that Defendants
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removed the case to federal court “on the eve of trial in 2015.” Dkt. No. 42. The motions to

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withdraw and for continuance were heard on December 14, 2016. Counsel for both parties and a
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representative for Defendants appeared by telephone. Good cause appearing, the motion to
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withdraw was granted. As a result, the hearing on Plaintiffs’ pending motions was continued from

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December 15, 2016 to February 16, 2017. Defendants were ordered to retain new counsel
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immediately.
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In a letter dated January 11, 2017, Mark Cukier, acting on behalf of TerraFusion Inc. and
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MCC Partners NY LLC, requested another sixty day continuance of the hearing on Plaintiffs’

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pending motions. That request was denied and Defendants were warned that, unless they appeared
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through counsel on or before February 10, 2017, Plaintiffs would be directed to move for default
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judgment against them. See Dkt. No. 55. As of the date of this order, Defendants still have not

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retained new counsel, nor opposed the pending motions. Accordingly, Plaintiffs are hereby

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ordered to apply for entry of default and thereafter move for default judgment. See United States

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v. High Country Broad. Co., 3 F.3d 1244, 1245 (9th Cir. 1993) (holding that when a defendant is

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ordered to retain counsel and the defendant fails to do so, entry of a default judgment against

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defendant is “perfectly appropriate”). The February 16, 2017 hearing on Plaintiffs’ motions to

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dismiss and for summary judgment is hereby vacated. Pursuant to the order granting Zvi Silver’s

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motion to withdraw as counsel, Mr. Silver is directed to forward this order to Defendants.

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IT IS SO ORDERED.

United States District Court
Northern District of California

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Dated: February 14, 2017
______________________________________
RICHARD SEEBORG
United States District Judge

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ORDER VACATING HEARING
CASE NO. 15-cv-02993-RS

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