Hwang v. WH Shipping LLC et al

Filing 55

ORDER Directing Richard J. Colosimo to Appear and Show Cause Why Defendants Should Not Be Sanctioned. Show Cause Response due by 5/8/2012. Order to Show Cause Hearing set for 5/15/2012 10:00 AM. Signed by Magistrate Judge Howard R. Lloyd on 4/19/2012. (hrllc2, COURT STAFF) (Filed on 4/19/2012)

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*E-FILED: April 19, 2012*

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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No. C10-02382 HRL

GEMMA HWANG,

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Plaintiff,
v.

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WH SHIPPING LLC; WOLFHOUND
SERVICES CORP.; NAMAHAGI VENTURES
LLC; RICHARD J. COLOSIMO; MICHAEL A.
PRINCI,

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ORDER DIRECTING RICHARD J.
COLOSIMO TO APPEAR AND SHOW
CAUSE WHY DEFENDANTS SHOULD
NOT BE SANCTIONED

Defendants.
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Plaintiff Gemma Hwang alleges that she was fraudulently induced into loaning $5

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million to defendants, who then reportedly misused or misappropriated the funds and failed to

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repay the loan. Hwang filed this action in state court. Defendants removed the matter here,

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asserting diversity jurisdiction. The notice of removal was filed by defendant Richard

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Colosimo, who advised that he is an attorney licensed to practice in several states, including

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California. (Dkt. No. 1 at 2). Throughout these proceedings, Colosimo has represented

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himself, as well as defendants WH Shipping, LLC, Wolfhound Services Corp., Namagahi

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Ventures LLC, and Michael A. Princi.1

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All parties consented to proceed before a magistrate judge for all purposes, including

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trial. And, on August 31, 2010, the court issued a scheduling order setting a January 7, 2011

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This court was told that the only other defendant, Gulf Holdings Group, was
never served, and that defendant has since been dismissed. (Dkt. No. 33).
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fact discovery cutoff; a January 28, 2011 expert disclosure deadline; a February 18, 2011

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rebuttal expert disclosure deadline; a March 18, 2011 expert discovery cutoff; a May 3, 2011

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deadline for hearing dispositive motions; a June 21, 2011 final pretrial conference; and a June

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27, 2011 start of bench trial. (Dkt. No. 21). Additionally, the parties were referred to court-

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sponsored mediation, with the mediation to be completed by November 28, 2010. (Dkt. No.

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20).

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The parties subsequently filed a joint request to extend the deadline for mediation. That

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request was granted, but no other deadlines were altered. (Docket No. 27). The parties

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eventually participated in a mediation, which was unsuccessful. After that, there was no
activity on the docket, and all court-ordered deadlines passed.

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For the Northern District of California

United States District Court

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Then, on June 15, 2011 (just under a week before the final pretrial conference), the

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parties filed a joint stipulation requesting that the court re-set all case deadlines, including

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discovery cutoff dates, dispositive motion deadlines, and the dates for the final pretrial

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conference and trial. This request, which was filed only after the deadlines set in the court’s

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Standing Order re Pretrial Preparation had passed, did not sufficiently explain why the parties

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were seeking such relief at that late date.

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Because the parties evidently were unprepared to proceed, this court had little choice but

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to vacate the previously set final pretrial conference and trial. Nevertheless, the parties were

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ordered to appear in person on June 21, 2011 (the date originally set for the final pretrial

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conference) to (1) discuss the case status and the parties’ request to re-set all deadlines and

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(2) show cause why they should not be sanctioned for the apparent failure to comply with this

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court’s orders. (Dkt. No. 31).

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The parties appeared as directed, but they did not manage to persuade that the August

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31, 2010 scheduling order provided insufficient time to complete discovery and other pretrial

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activities. Nor did the parties satisfactorily explain why they were unable to comply with the

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court-ordered deadlines. Following the conference, the court issued an order sanctioning lead

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counsel for each side in the amount of $500.00 payable forthwith to the Clerk of the Court.

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(Dkt. 33). The docket reflects that plaintiff’s counsel paid the sanction (Dkt. No. 34). There is

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no indication that Colosimo has done so.

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In that same order, the court re-set the final pretrial conference to January 17, 2012 and

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re-set the bench trial to begin on January 23, 2012, but denied the parties’ request to re-open or

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re-set other deadlines. (Dkt. No. 33). The parties were expressly admonished to comply with

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the court’s Standing Order re Pretrial Preparation with respect to the timing and content of the

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required Joint Pretrial Statement and other pretrial submissions. (Id.).

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On December 21, 2011, plaintiff filed a pretrial statement, indicating that defendants did

Standing Order re Pretrial Preparation. (Dkt. No. 36). Indeed, defendants failed to make any

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For the Northern District of California

not respond to plaintiff’s efforts to prepare a Joint Pretrial Statement required by the court’s

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United States District Court

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pretrial filings at all. And, on January 4, 2012, plaintiff filed a notice indicating that defendant

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WH Shipping had filed for Chapter 7 bankruptcy on December 30, 2011. Although the instant

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action automatically was stayed as to WH Shipping, the parties presented nothing to this court

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indicating that the stay applied to the other defendants.

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Defendants also failed to appear at the January 17, 2012 final pretrial conference and did

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not offer any explanation for their absence. Once again, because the parties were unprepared to

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proceed, the court was obliged to re-set the final pretrial conference and trial dates. The final

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pretrial conference was re-set for April 10, 2012. The court also vacated the bench trial set to

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begin on January 23, 2012 and stated that the trial would be re-set at the April 10, 2012

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conference. The parties were again expressly admonished to comply with the undersigned’s

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Standing Order re Pretrial Preparation with respect to the timing and content of the required

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Joint Pretrial Statement and other pretrial submissions. (Dkt. No. 39).

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Pursuant to the court’s Standing Order re Pretrial Preparation, certain pretrial papers

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(including, among other things, a Joint Pretrial Statement) were required to be filed by March

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27, 2012, and certain other papers were required to be filed no later than April 3, 2012. The

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court appreciates that defendants’ response to plaintiff’s motion in limine was belatedly filed

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because plaintiff’s motion was, itself, filed nearly one week late.2 Nevertheless, defendants’

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pretrial conference statement, trial brief, and proposed findings of fact and conclusions of law

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were filed well over a week late and only days before the pretrial conference. Moreover,

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defendants’ belated filings failed to include all information required by the court’s standing

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order.

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Defendants failed to appear at the April 10, 2012 pretrial conference. Although they

minute, little more than 24 hours prior to the conference—a conference that had been set nearly

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three months in advance. That request was denied. Defendants sent another attorney to appear

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at the conference in their stead. That attorney—who has had no prior involvement in this action

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For the Northern District of California

requested leave to appear by phone, this court notes that the request was made at the very last

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United States District Court

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and who disclaimed any knowledge about these proceedings—stated that he was appearing as a

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“last minute favor.” With no offense intended as to that attorney, this court notes that his

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presence at the conference did nothing to aid the proceedings. Largely due to defendants’

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absence, the April 10 conference ended up being an interim proceeding only. And, the court

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has now—for the third time, and nearly one year after this case originally was set for

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trial—continued the final pretrial conference.

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That brings the court to one final concern. The court is informed that Colosimo’s

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California law license was suspended as of July 1, 2011 for failure to pay the State Bar’s

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membership fees. In view of the fact that he evidently has not been eligible to practice here for

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the better part of the past year, Colosimo must explain why he continues to do so. See Civ. L.R.

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11-8 (“A person who exercises, or pretends to be entitled to exercise, any of the privileges of

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membership in the bar of this Court, when that person is not entitled to avail themselves of such

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membership privileges, shall be subject to sanctions or other punishment, including a finding of

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contempt.”).
Accordingly, Richard J. Colosimo shall appear before this court in person on May 15,

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2012, 10:00 a.m. in Courtroom 2, 5th Floor of the San Jose courthouse and show cause why the

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Defendants did not file any motions in limine. Accordingly, the court will not
consider any such motions from defendants.
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court should not impose sanctions (including monetary sanctions, or possibly, the striking of

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defendants’ pleadings and entry of their default) for the failure to comply with this court’s

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orders and for continuing to act as defense counsel in this matter on a suspended license.3

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Colosimo shall file a written response to this order no later than May 8, 2012.
SO ORDERED.

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Dated: April 19, 2012

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HOWARD R. LLOYD
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UNITED STATES MAGISTRATE JUDGE

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For the Northern District of California

United States District Court

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As discussed at the April 10, 2012 conference, plaintiff will not be required to
appear for the show cause hearing.
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5:10-cv-02382-HRL Notice has been electronically mailed to:

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Eugene Steven Alkana

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Richard J Colosimo

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Richard James Colosimo

[e-mail]
[e-mail]
[e-mail]

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For the Northern District of California

United States District Court

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