Princeton Developments, LLC v. Baylor et al

Filing 145

ORDER by Judge Claudia Wilken GRANTING MOTIONS ( 144 in case 4:11-cv-04471-CW and 122 in case 4:11-cv-04471-CW)TO SET ASIDE DISMISSALS AND SETTING FURTHER DEADLINES. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 3/1/2013)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 PRINCETON DEVELOPMENTS, LLC, 5 6 7 8 9 Plaintiff, v. BRYNEE K. BAYLOR; BAYLOR & JACKSON, PLLC; THE MILAN GROUP, INC.; FRANK LORENZO; GPH HOLDINGS, LLC; and PATRICK LEWIS, United States District Court For the Northern District of California 10 KUMAN BANQUE, LLC, ORDER GRANTING MOTIONS TO SET ASIDE DISMISSALS (Docket Nos. 144 in 11-4471 and 122 in 11-4472) AND SETTING FURTHER DEADLINES Defendants. ________________________________/ 11 No. C 11-4471 CW 12 13 14 15 16 17 No. C 11-4472 CW Plaintiff, v. BRYNEE K. BAYLOR; BAYLOR & JACKSON, PLLC; THE MILAN GROUP, INC.; and FRANK LORENZO, Defendants. ________________________________/ On February 20, 2013, the Court dismissed the above-captioned 18 cases for failure to prosecute after Plaintiffs Princeton 19 Development, LLC and Kuman Banque, LLC failed to appear at a case 20 management conference (CMC) that the Court had set to take place 21 on that date in an earlier order. Docket Nos. 142 in 11-4471 and 22 120 in 11-4472). The Court also noted that Plaintiffs had failed 23 to contact the Courtroom Deputy by February 20, 2013 as directed 24 at the last CMC if the parties were unable to settle and needed to 25 be referred to a Magistrate Judge for a settlement conference. 26 See Docket Nos. 125 in 11-4471 and 104 in 11-4472. 27 28 1 On February 26, 2013, Plaintiffs moved to set aside the 2 dismissal and to reinstate the cases. 3 and 122 in 11-4472. 4 declaration, explaining why he failed to attend the CMC. 5 Decl. ¶¶ 6-7. 6 Deputy on February 11 or 12 that the parties did not need a 7 referral to a Magistrate Judge for a settlement conference and 8 that she had directed him to provide a written letter. 9 ¶ 12. Docket Nos. 144 in 11-4471 Plaintiffs’ counsel has submitted a Counsel also states that he told the Courtroom Id. at He represents that he did not send a letter because he 10 United States District Court For the Northern District of California Hassing intended to advise the Court of the status of settlement 11 discussions at the February 20 CMC. 12 Id. Federal Rule of Civil Procedure 60(b)(1) allows a court “to 13 relieve a party or its legal representative from a final judgment, 14 order, or proceeding for . . . mistake, inadvertence, surprise, or 15 excusable neglect.” 16 excusable ‘is at bottom an equitable one, taking account of all 17 relevant circumstances surrounding the party’s omission.’” 18 (quoting Pioneer, 507 U.S. at 395). 19 excusable, we conduct the equitable analysis specified in Pioneer 20 by examining at least four factors: (1) the danger of prejudice to 21 the opposing party; (2) the length of the delay and its potential 22 impact on the proceedings; (3) the reason for the delay; and 23 (4) whether the movant acted in good faith.” 24 v. U.S. Postal Serv., 231 F.3d 1220, 1223–24 (9th Cir. 2000)) 25 (internal quotation marks and formatting omitted). 26 “The determination of whether neglect is Id. “To determine when neglect is Id. (quoting Bateman These factors weigh in favor of setting aside the order of 27 dismissal here. 28 have diligently met filing deadlines and have appeared at each of Prior to this point in the litigation, Plaintiffs 2 1 the scheduled court dates. 2 in this single instance was the result of a good faith mistake on 3 the part of their counsel, who has submitted a sworn declaration 4 explaining the circumstances. 5 vacate the dismissals to avoid impacting the case management 6 schedule. 7 Plaintiffs’ failure to attend the CMC Plaintiffs also quickly sought to Accordingly, the Court GRANTS Plaintiffs’ motion to set aside the dismissals and REINSTATES these cases under Rule 60(b)(1). 9 The Court warns Plaintiffs that a repeated failure to meet filing 10 United States District Court For the Northern District of California 8 deadlines or to appear for conferences or hearings in the future 11 may result in dismissal of their cases. 12 The previously set case management dates are maintained. 13 Docket Nos. 125 in 11-4471 and 104 in 11-4472. 14 See orders as follows: 15 (1) The Court also Plaintiffs’ counsel represents that a settlement 16 conference is not needed at this time because he believes that a 17 settlement is “not going to happen” as a result of Defendant 18 Patrick Lewis’s failure to provide requested documents. 19 Decl. ¶ 12. 20 attempt to settle these cases. 21 Magistrate Judge for a settlement conference to be held in the 22 next ninety days. 23 aggrieved party shall seek judicial assistance as outlined in the 24 Court’s standing orders. 25 (2) Hassing The Court orders the parties to make a good faith The cases are hereby referred to a If discovery obligations are not being met, the Within two weeks of the date of this Order, Plaintiffs 26 shall serve summonses and their amended complaints on Susan Kevra- 27 Shiner, Executrix of the Estate of Frank L. Pavlico III, pursuant 28 3 1 to Federal Rule of Civil Procedure 4, and she shall file a 2 response to the amended complaints within three weeks thereafter. 3 (3) Plaintiffs have filed proof of service of its February 4 19, 2013 order on Ms. Kevra-Shiner in the care of the Law Office 5 of Susan C. Kevra, 748 Grove Street, Avoca, Pennsylvania 18641. 6 Docket Nos. 140 in 11-4471 and 119 in 11-4472. 7 that, in the related case proceeding in the District Court for the 8 District of Columbia, Securities and Exchange Commission v. The 9 Milan Group, Inc., Case No. 11-2131, Ms. Kevra-Shiner has filed The Court notes United States District Court For the Northern District of California 10 several documents that provide a different address, 1003 11 Whippoorwill Drive, Clarks Summit, Pennsylvania 18411. 12 weeks of the date of this order, Plaintiffs are directed to serve 13 Ms. Kevra-Shiner with a copy of the February 19, 2013 order at the 14 Clarks Summit address as well and to file proof of service. 15 (4) Within two The Court maintains the deadlines currently set for the 16 briefing on Defendant Brynee Baylor’s motion to vacate the 17 defaults entered against her and Defendant Dawn Jackson’s motion 18 to dismiss. 19 11-4472. 20 (5) 21 22 See Docket Nos. 136, 139 in 11-4471 and 115, 117 in These motions will be resolved on the papers. The Court sets Thursday, July 25, 2013, at 2:00 p.m. as the deadline to hear all case dispositive motions. IT IS SO ORDERED. 23 24 25 Dated: 3/1/2013 CLAUDIA WILKEN United States District Judge 26 27 28 4

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