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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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PRINCETON DEVELOPMENTS, LLC,

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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

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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.
________________________________/

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No. C 11-4471 CW

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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

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cases for failure to prosecute after Plaintiffs Princeton
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Development, LLC and Kuman Banque, LLC failed to appear at a case
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management conference (CMC) that the Court had set to take place
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on that date in an earlier order.

Docket Nos. 142 in 11-4471 and

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120 in 11-4472).

The Court also noted that Plaintiffs had failed

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to contact the Courtroom Deputy by February 20, 2013 as directed
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at the last CMC if the parties were unable to settle and needed to
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be referred to a Magistrate Judge for a settlement conference.
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See Docket Nos. 125 in 11-4471 and 104 in 11-4472.
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On February 26, 2013, Plaintiffs moved to set aside the

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dismissal and to reinstate the cases.

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and 122 in 11-4472.

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declaration, explaining why he failed to attend the CMC.

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Decl. ¶¶ 6-7.

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Deputy on February 11 or 12 that the parties did not need a

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referral to a Magistrate Judge for a settlement conference and

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that she had directed him to provide a written letter.

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¶ 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

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United States District Court
For the Northern District of California

Hassing

intended to advise the Court of the status of settlement

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discussions at the February 20 CMC.

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Id.

Federal Rule of Civil Procedure 60(b)(1) allows a court “to

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relieve a party or its legal representative from a final judgment,

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order, or proceeding for . . . mistake, inadvertence, surprise, or

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excusable neglect.”

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excusable ‘is at bottom an equitable one, taking account of all

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relevant circumstances surrounding the party’s omission.’”

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(quoting Pioneer, 507 U.S. at 395).

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excusable, we conduct the equitable analysis specified in Pioneer

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by examining at least four factors: (1) the danger of prejudice to

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the opposing party; (2) the length of the delay and its potential

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impact on the proceedings; (3) the reason for the delay; and

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(4) whether the movant acted in good faith.”

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v. U.S. Postal Serv., 231 F.3d 1220, 1223–24 (9th Cir. 2000))

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(internal quotation marks and formatting omitted).

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“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

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dismissal here.

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have diligently met filing deadlines and have appeared at each of

Prior to this point in the litigation, Plaintiffs

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the scheduled court dates.

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in this single instance was the result of a good faith mistake on

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the part of their counsel, who has submitted a sworn declaration

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explaining the circumstances.

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vacate the dismissals to avoid impacting the case management

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schedule.

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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).

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The Court warns Plaintiffs that a repeated failure to meet filing

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United States District Court
For the Northern District of California

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deadlines or to appear for conferences or hearings in the future

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may result in dismissal of their cases.

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The previously set case management dates are maintained.

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Docket Nos. 125 in 11-4471 and 104 in 11-4472.

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See

orders as follows:

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(1)

The Court also

Plaintiffs’ counsel represents that a settlement

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conference is not needed at this time because he believes that a

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settlement is “not going to happen” as a result of Defendant

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Patrick Lewis’s failure to provide requested documents.

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Decl. ¶ 12.

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attempt to settle these cases.

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Magistrate Judge for a settlement conference to be held in the

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next ninety days.

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aggrieved party shall seek judicial assistance as outlined in the

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Court’s standing orders.

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(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

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shall serve summonses and their amended complaints on Susan Kevra-

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Shiner, Executrix of the Estate of Frank L. Pavlico III, pursuant

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to Federal Rule of Civil Procedure 4, and she shall file a

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response to the amended complaints within three weeks thereafter.

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(3)

Plaintiffs have filed proof of service of its February

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19, 2013 order on Ms. Kevra-Shiner in the care of the Law Office

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of Susan C. Kevra, 748 Grove Street, Avoca, Pennsylvania 18641.

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Docket Nos. 140 in 11-4471 and 119 in 11-4472.

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that, in the related case proceeding in the District Court for the

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District of Columbia, Securities and Exchange Commission v. The

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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

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several documents that provide a different address, 1003

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Whippoorwill Drive, Clarks Summit, Pennsylvania 18411.

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weeks of the date of this order, Plaintiffs are directed to serve

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Ms. Kevra-Shiner with a copy of the February 19, 2013 order at the

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Clarks Summit address as well and to file proof of service.

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(4)

Within two

The Court maintains the deadlines currently set for the

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briefing on Defendant Brynee Baylor’s motion to vacate the

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defaults entered against her and Defendant Dawn Jackson’s motion

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to dismiss.

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11-4472.

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(5)

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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.

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Dated: 3/1/2013

CLAUDIA WILKEN
United States District Judge

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