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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 JOE HAND PROMOTIONS, INC., 5 No. C 11-6334 CW Plaintiff, ORDER GRANTING MOTION TO VACATE DISMISSAL (Docket No. 42). 6 v. 7 MIULER REYES, 8 Defendant. ________________________________/ 9 United States District Court For the Northern District of California 10 Plaintiff Joe Hand Productions, Inc. moves for relief from 11 this Court’s December 3, 2012 order dismissing this case for 12 failure to prosecute and asks that the case be reinstated. 13 Defendant Miuler Reyes, proceeding pro se, opposes the motion. 14 The Court took the matter under submission on the papers and now 15 reluctantly grants Plaintiff’s motion. 16 BACKGROUND 17 On March 15, 2012, the Clerk entered default against 18 Defendant. 19 After granting Defendant’s motion, the Court scheduled a case 20 management conference for November 28, 2012. 21 16-10(a) provides that “lead trial counsel for each party must 22 attend the initial Case Management Conference” unless excused by 23 the Court. 24 Defendant moved to set aside default in June 2012. Civil Local Rule Plaintiff is represented by Thomas P. Riley, a sole 25 practitioner. 26 management conference. 27 who is not a member of Mr. Riley’s law firm nor listed in the 28 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 1 the third time that Mr. Riley has sent another attorney to attend 2 a hearing in his place without obtaining leave of the Court. 3 two prior occasions, he was expressly warned that such conduct was 4 not permitted. 5 On The Court dismissed Plaintiff’s case at the hearing for 6 failure to prosecute. 7 December 3, 2012. 8 that Mr. Riley’s failure to appear for the case management 9 conference violated the local rules as well as this Court’s prior United States District Court For the Northern District of California 10 directives. 11 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 12 reinstate the case under Federal Rule of Civil Procedure 60(b)(1). 13 Plaintiff contends that its failure to prosecute was the result of 14 “excusable neglect” -- specifically, Mr. Riley’s “negligence [] 15 with respect to interoffice communications,” which led to his 16 failure to appear at the case management conference. 17 6. 18 instructed his staff “to arrange for Mr. Beck’s appearance in this 19 specific case” prior to the hearing. 20 Riley ¶ 6. 21 his error was not made in bad faith and because Plaintiff was not 22 warned that dismissal was imminent. Pls.’ Mot. Mr. Riley claims that he mistakenly believed that he had 1 Declaration of Thomas P. He argues that the case should be reinstated because 23 1 24 25 26 27 28 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”). 2 1 DISCUSSION 2 Federal Rule of Civil Procedure 60(b)(1) allows a court “to relieve a party or its legal representative from a final judgment, 4 order, or proceeding for . . . mistake, inadvertence, surprise, or 5 excusable neglect.” 6 which the failure to comply with a filing deadline is attributable 7 to negligence, and includes omissions caused by carelessness.” 8 Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009) 9 (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 10 United States District Court For the Northern District of California 3 U.S. 380, 388 (1993)) (internal quotation marks and formatting 11 omitted)). 12 Excusable neglect “encompasses situations in Here, the extent of Plaintiff counsel’s neglect went beyond 13 mere carelessness. 14 attorney to appear in his place at a case management conference 15 even though the Court has warned him on multiple occasions that 16 this is prohibited. 17 failed to respond to settlement offers and ignored numerous phone 18 calls from Defendant, who is pro se. 19 short, Mr. Riley’s conduct in this case has been egregious. 20 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 21 warned before a court dismisses the case on its own motion for 22 failure to prosecute. 23 F.2d 498, 500 (9th Cir. 1987). 24 warned Mr. Riley in other cases that his conduct could result in a 25 Rule 41(b) dismissal, it did not provide such a warning in this 26 case. 27 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 28 3 1 local rules or this Court’s orders will result in dismissal of the 2 case. 3 4 CONCLUSION For the reasons set forth above, the Court GRANTS Plaintiff’s 5 motion to reinstate the case (Docket No. 42). 6 previous order dismissing the case for failure to prosecute 7 (Docket No. 39) is VACATED. 8 set the following dates: 9 The Court’s The Clerk shall reopen this file and 5/3/2013 10 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 11 Date of next case management conference: 10/10/2013 12 Deadline to hear case-dispositive motions: 10/10/2013 13 Completion of fact discovery: 12/16/2013 14 Completion of expert discovery: 12/16/2013 15 Final pretrial conference to be held at 2:00 p.m.: 3/3/2014 16 One-day court trial to begin at 8:30 a.m.: 17 In addition, a settlement conference will be held with either 18 19 3/17/2014 Magistrate Judge Ryu or Westmore by June 28, 2013. The Court refers Defendant to the Legal Help Center, located 20 inside the San Francisco federal courthouse at 450 Golden Gate 21 Avenue, for advice or the appointment of volunteer counsel, if 22 available. 23 x8657. 24 The Legal Help Center is reachable at (415) 782–9000 IT IS SO ORDERED. 25 26 27 Dated: 4/8/2013 CLAUDIA WILKEN United States District Judge 28 4

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