Norman Yatooma & Associates, P.C. v. Pacific Metro, LLC

Filing 18

ORDER DISMISSING CASE. The court therefore finds good cause to dismiss this case for lack of prosecution pursuant to Federal Rule of Civil Procedure 41(b) and Federal Rule of Bankruptcy Procedure 8001. Based on the foregoing, this case is DISMISSED. The clerk shall close this file. Signed by Judge Edward J. Davila on 9/11/2012. (ejdlc1, COURT STAFF) (Filed on 9/11/2012) Modified text on 9/11/2012 (ecg, COURT STAFF).

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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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IN RE:

CASE NO. 5:12-cv-01328 EJD

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PACIFIC METRO, LLC,

(Appeal from Bankr. N.D. Cal. (San Jose) Case
No. 10-55788)

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Debtor.
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ORDER DISMISSING CASE

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NORMAN YATOOMA & ASSOCIATES,
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Plaintiff(s)/Appellant(s),
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v.
PACIFIC METRO, LLC,

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Defendant(s)/Respondent(s).
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Appellant Normal Yatooma & Associates (“Appellant”) filed a Notice of Appeal from a

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decision of the Bankruptcy Court on March 12, 2012, and the appeal was entered on the district

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court’s docket on March 16, 2012. See Docket Item No. 1. On July 18, 2012, the court denied

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Respondent’s motion to dismiss this case and issued, as an alternative to dismissal, an Order to

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Show Cause requiring Appellant to investigate the whereabouts of the record in this matter and file a

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brief declaration detailing the efforts made to secure the record by August 1, 2012. See Docket Item

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No. 11. The court advised Appellant that this case would be dismissed if Appellant did not file a

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response as directed.

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Appellant did not comply. Instead of filing a declaration by the court-imposed deadline of
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CASE NO. 5:12-cv-01328 EJD
ORDER DISMISSING CASE

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August 1, 2012, Appellant filed two untimely declarations on August 2, 2012. See Docket Item

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Nos. 13, 14. In addition, instead of detailing Appellant’s efforts to secure the record as the court

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instructed, Appellant related that it needed to remove local counsel and find another attorney to

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support pro hac vice admission. Appellant did not include any information about its contacts with

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the Bankruptcy Court or state whether it inquired about the appellate record - a task which notably

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does not require the employ of local counsel. The absence of any information responsive to the

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Order to Show Cause leads the court to conclude that Appellant made no effort to conduct the

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investigation necessary to develop this case.

response to the Order to Show Cause, Appellant stated that once local counsel was selected it would

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For the Northern District of California

Nor has Appellant followed through with its own representations. In the declarations filed in

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United States District Court

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“immediately afterward” move for pro hac vice admission in the Bankruptcy Court and file the

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documents necessary for preparation of the appellate record. Appellant then moved for pro hac vice

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admission based on new local counsel in the District Court on August 13, 2012, and the District

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Court granted that motion on August 31, 2012. See Docket Item Nos. 15, 17. A review of the

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Bankruptcy Court’s docket reveals that Appellant did not make a similar motion for pro hac vice

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admission in that court, and Appellant still has not filed the documents necessary for preparation of

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the appellate record with the Bankruptcy Court.

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At this time, the court finds it has provided Appellant sufficient opportunity to correct any

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deficiencies and comply with Federal Rule of Bankruptcy Procedure 8006, but Appellant has not

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availed itself of that opportunity. There are now no other less egregious options. The court

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therefore finds good cause to dismiss this case for lack of prosecution pursuant to Federal Rule of

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Civil Procedure 41(b) and Federal Rule of Bankruptcy Procedure 8001.

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Based on the foregoing, this case is DISMISSED. The clerk shall close this file.
IT IS SO ORDERED.

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Dated: September 11, 2012
EDWARD J. DAVILA
United States District Judge

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CASE NO. 5:12-cv-01328 EJD
ORDER DISMISSING CASE