Joe Hand Promotions Inc v. Reyes

Filing 45

ORDER by Judge Claudia Wilken GRANTING 42 MOTION TO VACATE DISMISSAL (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 4/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOE HAND PROMOTIONS, INC.,

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No. C 11-6334 CW

Plaintiff,

ORDER GRANTING
MOTION TO VACATE
DISMISSAL (Docket
No. 42).

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v.

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MIULER REYES,

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Defendant.
________________________________/

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United States District Court
For the Northern District of California

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Plaintiff Joe Hand Productions, Inc. moves for relief from

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this Court’s December 3, 2012 order dismissing this case for

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failure to prosecute and asks that the case be reinstated.

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Defendant Miuler Reyes, proceeding pro se, opposes the motion.

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The Court took the matter under submission on the papers and now

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reluctantly grants Plaintiff’s motion.

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BACKGROUND

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On March 15, 2012, the Clerk entered default against

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Defendant.

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After granting Defendant’s motion, the Court scheduled a case

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management conference for November 28, 2012.

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16-10(a) provides that “lead trial counsel for each party must

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attend the initial Case Management Conference” unless excused by

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the Court.

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Defendant moved to set aside default in June 2012.

Civil Local Rule

Plaintiff is represented by Thomas P. Riley, a sole

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practitioner.

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management conference.

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who is not a member of Mr. Riley’s law firm nor listed in the

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pleadings -- appeared in his place, albeit late.

Mr. Riley failed to appear at the November 28 case
Instead, another attorney -- James Beck,

It was at least

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the third time that Mr. Riley has sent another attorney to attend

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a hearing in his place without obtaining leave of the Court.

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two prior occasions, he was expressly warned that such conduct was

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not permitted.

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On

The Court dismissed Plaintiff’s case at the hearing for

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failure to prosecute.

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December 3, 2012.

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that Mr. Riley’s failure to appear for the case management

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conference violated the local rules as well as this Court’s prior

United States District Court
For the Northern District of California

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directives.

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A written order of dismissal followed on

Docket No. 39.

In that order, the Court noted

Id. at 2.

On December 10, 2012, Plaintiff filed this motion to

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reinstate the case under Federal Rule of Civil Procedure 60(b)(1).

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Plaintiff contends that its failure to prosecute was the result of

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“excusable neglect” -- specifically, Mr. Riley’s “negligence []

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with respect to interoffice communications,” which led to his

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failure to appear at the case management conference.

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instructed his staff “to arrange for Mr. Beck’s appearance in this

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specific case” prior to the hearing.

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Riley ¶ 6.

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his error was not made in bad faith and because Plaintiff was not

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warned that dismissal was imminent.

Pls.’ Mot.

Mr. Riley claims that he mistakenly believed that he had

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Declaration of Thomas P.

He argues that the case should be reinstated because

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This is not the first time that Mr. Riley has attributed
“excusable neglect” to a staffing or other administrative error. See
J&J Sports Prods., Inc. v. Looney, 2011 WL 6306660, at *1 (N.D. Cal.)
(noting that plaintiff’s counsel missed a filing deadline due to “a
staffing transition” in his office); J&J Sports Prods., Inc. v. Ramos,
2012 WL 4575338, at *2 (S.D. Cal.) (noting that plaintiff’s counsel
missed a filing deadline due to an “administrative oversight” and urging
him “to undertake due effort to ensure that future administrative
oversights are prevented”).

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DISCUSSION

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Federal Rule of Civil Procedure 60(b)(1) allows a court “to
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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which the failure to comply with a filing deadline is attributable

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to negligence, and includes omissions caused by carelessness.”

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Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009)

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(quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507

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United States District Court
For the Northern District of California

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U.S. 380, 388 (1993)) (internal quotation marks and formatting

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omitted)).

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Excusable neglect “encompasses situations in

Here, the extent of Plaintiff counsel’s neglect went beyond

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mere carelessness.

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attorney to appear in his place at a case management conference

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even though the Court has warned him on multiple occasions that

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this is prohibited.

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failed to respond to settlement offers and ignored numerous phone

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calls from Defendant, who is pro se.

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short, Mr. Riley’s conduct in this case has been egregious.

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As noted above, Mr. Riley sent another

Mr. Riley has also, according to Defendant,

See Pl.’s Mot. 4-5.

In

Nevertheless, the Ninth Circuit has held that a party must be

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warned before a court dismisses the case on its own motion for

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failure to prosecute.

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F.2d 498, 500 (9th Cir. 1987).

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warned Mr. Riley in other cases that his conduct could result in a

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Rule 41(b) dismissal, it did not provide such a warning in this

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case.

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set aside the dismissal.

Hamilton v. Neptune Orient Lines, Ltd., 811
Although this Court has previously

Accordingly, the Court must grant Plaintiff’s motion and
Any future failures to comply with the

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local rules or this Court’s orders will result in dismissal of the

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case.

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CONCLUSION
For the reasons set forth above, the Court GRANTS Plaintiff’s

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motion to reinstate the case (Docket No. 42).

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previous order dismissing the case for failure to prosecute

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(Docket No. 39) is VACATED.

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set the following dates:

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The Court’s

The Clerk shall reopen this file and

5/3/2013

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United States District Court
For the Northern District of California

Deadline to add additional parties or claims:
Disclosure of expert witnesses and reports:

5/17/2013

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Date of next case management conference:

10/10/2013

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Deadline to hear case-dispositive motions:

10/10/2013

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Completion of fact discovery:

12/16/2013

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Completion of expert discovery:

12/16/2013

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Final pretrial conference to be held at 2:00 p.m.: 3/3/2014

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One-day court trial to begin at 8:30 a.m.:

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In addition, a settlement conference will be held with either

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3/17/2014

Magistrate Judge Ryu or Westmore by June 28, 2013.
The Court refers Defendant to the Legal Help Center, located

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inside the San Francisco federal courthouse at 450 Golden Gate

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Avenue, for advice or the appointment of volunteer counsel, if

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available.

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x8657.

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The Legal Help Center is reachable at (415) 782–9000

IT IS SO ORDERED.

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Dated: 4/8/2013

CLAUDIA WILKEN
United States District Judge

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