Fotinos v. Fotinos et al

Filing 92

ORDER by Judge Claudia WilkenGRANTING PLAINTIFFS ( 87 , 88 ) EX PARTE APPLICATIONS FOR EXTENSION OF TIME AND STRIKING IMPROPERLY FILED DOCUMENTS. (ndr, COURT STAFF) (Filed on 4/12/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MICHELE FOTINOS, on behalf of
herself and as Guardian ad Litem
for her minor children, R.F. and
A.F.,
Plaintiff,

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v.

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United States District Court
For the Northern District of California

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JOHN FOTINOS; DAWN GROVER; RENEE
LA FARGE; BONNIE MILLER; KAMALA
HARRIS, Attorney General; JAYNE
KIM, Chief Trial Counsel, State
Bar of California; ROBYN PITTS,
City of Belmont Police Officer;
MARK REED, San Mateo County
Deputy Sheriff; PATRICK CAREY,
San Mateo County Deputy Sheriff;
SHANNON MORGAN; CITY OF BELMONT;
COUNTY OF SAN MATEO; and RENEE
LAFARGE,

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No. C 12-953 CW
ORDER GRANTING
PLAINTIFF’S EX
PARTE APPLICATIONS
FOR EXTENSION OF
TIME (Docket Nos.
87 & 88) AND
STRIKING
IMPROPERLY FILED
DOCUMENTS (Docket
Nos. 87-1, 87-2 &
87-3)

Defendant.
________________________________/

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I.

Ex Parte Application for Extension of Time to File Second
Amended Complaint
On March 22, 2013, the Court entered an order dismissing all

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of Plaintiff’s federal claims.

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Plaintiff fourteen days to amend some of her federal claims.

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Court advised Plaintiff that if she failed to do so, her federal

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claims would be dismissed with prejudice and her state claims

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would be dismissed without prejudice to refiling in state court.

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Accordingly, Plaintiff’s Second Amended Complaint (2AC) was due by

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April 5, 2013.

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In that order, the Court granted
The

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On April 9, 2013, Plaintiff filed an “Ex Parte Motion for

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Leave to File Second Amended Supplemental Complaint 3 days late.”

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Docket No. 87.

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Carey and Shannon Morgan (San Mateo County Defendants) and

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Defendant Bonnie Miller oppose the motion.

Defendants County of San Mateo, Mark Reed, Patrick

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The Court notes that this request is part of an ongoing

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pattern of Plaintiff’s counsel seeking extensions of time after a

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deadline has passed.

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Docket No. 63 (application for extension of time filed on the date

See Docket Nos. 44, 65, 85, 87, 88; see also

United States District Court
For the Northern District of California

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the filing was due).

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provides that a motion for extension of time “made after the time

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has expired” may be granted “if the party failed to act because of

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excusable neglect.”

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Plaintiff for failing to meet the Court’s deadlines is that

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counsel is busy working with other clients on other matters.

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e.g., Docket No. 65 at ¶4 (“I ended up on Friday, July 6, 2012,

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and Saturday, July 7, 2012, working on matters for two other

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clients . . .); Docket No. 87 at ¶3 (discussing counsel’s decision

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to “[take] on the task of representing the key witness of [her]

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client for whom [she] recently filed a civil rights action in the

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Central District of CA.”).

Federal Rule of Civil Procedure 6(b)(1)(B)

However, the primary reason provided by

See,

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The California Rules of Professional Conduct provide, “A

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member shall not intentionally, recklessly, or repeatedly fail to

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perform legal services with competence.”

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Conduct 3-110(A).

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legal service shall mean to apply the 1) diligence, 2) learning

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and skill, and 3) mental, emotional, and physical ability

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reasonably necessary for the performance of such service.”
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Cal. Rule of Prof.

“For purposes of this rule, ‘competence’ in any

Id. at

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3-110(B).

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consider her obligations to current clients before taking on

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additional clients or cases, and to ensure that she can meet the

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deadlines in all of her existing cases.

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The Court interprets this rule to require counsel to

The Court will GRANT Plaintiff’s ex parte application for

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extension of time to file her 2AC.

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counsel is admonished of her duty to provide competent service to

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her client, including her duty to meet the Court’s deadlines.

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Plaintiff shall file her 2AC within one day of the date of this

(Docket No. 87)

United States District Court
For the Northern District of California

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order.

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complaint within twenty-one days thereafter.

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II.

However,

Defendants may answer or move to dismiss the amended

Second Ex Parte Application for Extension of Time Re:
Documents Containing Confidential Information

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On March 19, 2013, the Court issued an order directing

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Plaintiff to take steps to ensure that her filings did not

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improperly include confidential information on the public docket.

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On April 1, 2013, the Court granted Plaintiff’s request for an

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extension of time until April 9, 2013 to comply with the Court’s

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March 19, 2013 order.

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parte application seeking an extension of the April 9 deadline to

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April 16, 2013.

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“could not complete the redaction and other tasks related to

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preserving the confidentiality of the children even in the extra

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time which the Court granted because of the demands of her law

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practice.”

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of counsel’s obligation to provide competent service to her

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clients.

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application for an extension of time to April 16, 2013 (Docket No.

On April 10, 2013, Plaintiff filed an ex

In that application, counsel states that she

As noted above, this excuse is not well-taken in light

Nonetheless, the Court will GRANT Plaintiff’s ex parte

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88).

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sanctions including, but not limited to, dismissal of Plaintiff’s

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case.

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III. Request to Substitute Redacted Amended Complaint

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Any future failure to meet Court deadlines may result in

At least twice, this Court has admonished Plaintiff of the

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need to refer to minor children by their initials rather than

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their full names.

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Plaintiff’s continued use of minor children’s full names and

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inclusion of other personally identifying and sensitive

See Docket Nos. 45 and 83.

Because of

United States District Court
For the Northern District of California

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information related to minor children, the Court temporarily

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sealed the entire docket on March 19, 2013 and ordered Plaintiff

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to conduct a review of all of her filings and to take steps to

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ensure that such information is not included on the public docket.

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Docket No. 83.

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that includes the full names of her minor children.

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87-1, 87-2 and 87-3.

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“request to substitute” a redacted 2AC.

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The Court grants this request.

Nonetheless, Plaintiff has filed a proposed 2AC
Docket Nos.

Recognizing this error, counsel has filed a
(Docket No. 88)

Further, because Docket Nos.

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87-1, 87-2, and 87-3 contain the full names of Plaintiff’s minor

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children, the Court STRIKES those documents and directs the Clerk

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to delete them from the public docket.

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IT IS SO ORDERED.

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Dated: 4/12/2013

CLAUDIA WILKEN
United States District Judge

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