Banga v. First USA, N.A. et al
Filing
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ORDER by Judge ARMSTRONG granting 77 Motion for Extension of Time to File (lrc, COURT STAFF) (Filed on 5/17/2012)
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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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KAMLESH BANGA,
Case No: C 10-0975 SBA
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Plaintiff,
Related to: C 08-4147 SBA
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vs.
ORDER
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FIRST USA, NA and CHASE BANK USA,
Docket 77.
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Defendants.
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On December 8, 2010, Magistrate Judge Laurel Beeler issued a Report and
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Recommendation on Defendant Chase Bank USA, N.A.'s ("Defendant") motion under
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Federal Rule of Civil Procedure 41(d) for an award of costs in a related action, Banga v.
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Experian Information Systems and Chase Bank, No. C 08-4147 SBA ("Banga I"). Dkt. 59.
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Magistrate Judge Beeler recommended awarding costs in the amount of $1,247.84, which
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consisted of $1067.39 in "Federal Express/Filing" costs, and $180.45 in copying costs.
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Dkt. 59. She further recommended staying the action until Plaintiff remitted those costs to
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Defendant. Id. Plaintiff filed objections to the Report and Recommendation. Dkt. 60. On
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March 16, 2011, this Court issued an Order overruling Plaintiff's objections and accepting
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the recommendations of Magistrate Judge Beeler. Dkt. 64. In this Order, the Court
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specifically warned Plaintiff that her action would be dismissed under Federal Rule of Civil
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Procedure 41(b) if she did not tender payment within thirty days. Id.
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On March 30, 2011, Plaintiff filed a Motion for Reconsideration of Order Accepting
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Report and Recommendation of Magistrate Judge. Dkt. 65. The sole basis for her motion
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was that the Court erred in including the $670.05 charge for the subpoena in its cost award.
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Id. Plaintiff claimed that "she was not aware . . . that Defendant had represented to the
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Court that it had paid to the process server in serving a subpoena as it was not mentioned in
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said Recommendation issued on December 10, 2010." Id. The actual cost of serving the
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deposition subpoena--she claimed--was only $59.00. Id.
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In an Order dated March 30, 2012, this Court denied Plaintiff's motion for
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reconsideration, directed her to pay Defendant $1,247.84 in costs within twenty-one (21)
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days, and stayed the action in the interim. Dkt. 76. The Court specifically warned Plaintiff
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that "failure to pay within the deadline indicated may result in dismissal of this action,
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without further notice, under Federal Rule of Civil Procedure 41(b) for lack of
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prosecution." Id.
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On May 1, 2012, Plaintiff filed a motion for extension of time to pay costs,
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requesting an extension of 180 days because she is disabled and unable to work, and her
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monthly retirement check in the amount of $1,184.32 is her only income. Dkt. 77.
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According to Plaintiff, she sent a check in the amount of $150.00 to Defendant on April 27,
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2012. Dkt. 78. On May 3, 2012, Defendant filed an opposition to Plaintiff's motion,
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arguing that Plaintiff's "untimely and defective motion for extension of time should be
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denied," and that the Court should dismiss this action under Rule 41(b) for failure to
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prosecute and failure to comply with the Court's March 30, 2012 order. Dkt. 80.
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The Court finds that Plaintiff has failed to demonstrate that a 180-day extension of
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time to pay costs is warranted. Plaintiff has been on notice of her obligation to pay
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Defendant costs since March 16, 2011, the date this Court issued its Order accepting
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Magistrate Judge Beeler's Report and Recommendation on Defendant's motion under Rule
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41(d) for an award of costs. Dkt. 64. Over a year has elapsed since the issuance of this
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Order. As such, Plaintiff has been given ample time to comply with the Order. While the
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Court does not countenance Plaintiff's disobedience of its Order or her failure to prosecute
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this case, which has unreasonably delayed resolution of this action and caused the Court to
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expend its scarce resources devoted to matters other than the merits of this action, the Court
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declines to dismiss this action as Defendant requests. In light of this Court's obligation to
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consider less drastic alternatives before dismissing an action under Rule 41(b) for failure to
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prosecute and/or failure to comply with a court order, see Pagtalunan v. Galaza, 291 F.3d
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639, 642 (9th Cir. 2002), the Court will grant Plaintiff a twenty-one (21) day extension of
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time to comply with the Court's Order. The Court warns Plaintiff that no further extensions
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of time will be granted. Accordingly,
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IT IS HEREBY ORDERED THAT:
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1.
Within twenty-one (21) days from the date this Order is filed, Plaintiff shall
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pay Defendant $1,247.84 in costs and shall file a certificate with this Court confirming
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payment; this action is stayed in the interim. Plaintiff is warned that the failure to timely
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pay Defendant will result in dismissal of this action under Rule 41(b) for lack of
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prosecution and failure to comply with a Court Order. In the event Plaintiff does not
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comply with this Order, Defendant shall notify the Court.
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2.
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IT IS SO ORDERED.
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This Order terminates Docket 77.
Dated: 5/17/12
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________________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
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BANGA et al,
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Plaintiff,
v.
FIRST USA, N.A. ET AL et al,
Defendant.
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Case Number: CV10-00975 SBA
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CERTIFICATE OF SERVICE
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on May 17, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.
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Kamlesh Banga
P.O. Box 6025
Vallejo, CA 94591
Dated: May 17, 2012
Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk
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