Cabrera v. Oh

Filing 28

ORDER That Case Be Reassigned to a District Judge; REPORT AND RECOMMENDATION that 10 defendant's Answer Be Stricken. Objections due by 5/7/2013. Signed by Magistrate Judge Howard R. Lloyd on 4/23/2013. (hrllc2, COURT STAFF) (Filed on 4/23/2013)

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1 2 *E-FILED: April 23, 2013* 3 4 5 6 NOT FOR CITATION 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 For the Northern District of California United States District Court 7 12 13 14 15 No. C12-04294 HRL JUAN TORRES CABRERA, ORDER THAT CASE BE REASSIGNED TO A DISTRICT JUDGE Plaintiff, v. REPORT AND RECOMMENDATION THAT DEFENDANT’S ANSWER BE STRICKEN CHRISTOPHER HANBUM OH, Defendant. / 16 17 Plaintiff sues under federal and state law for wages that allegedly were earned, but 18 remain unpaid. The complaint was filed on August 15, 2012. Defendant Oh subsequently 19 appeared through attorney Milton Katz, who filed an answer on Oh’s behalf. (See Dkt. No. 10). 20 Shortly after, Katz moved to withdraw as counsel of record, asserting that Oh failed to 21 pay his fees and refused to provide records Katz deemed necessary for the defense of this 22 action. Katz stated that he sent Oh a copy of that motion. The court received no opposition to 23 it. And, Katz’s motion to withdraw was granted, subject to the condition that papers could 24 continue to be served on him for forwarding purposes, unless and until Oh appeared through 25 other counsel or pro se. (See Dkt. No. 15, December 4, 2012 Order). In that same order, this 26 court re-set the initial case management conference for December 18, 2012. Oh was ordered to 27 appear at the conference in person, unless he retained other counsel by that time. 28 1 The court’s December 4, 2012 order was electronically served on Katz for forwarding 2 purposes through the court’s ECF system. Additionally, the court mailed a copy of the order to 3 Oh at the address listed for defendant in Katz’s motion papers. 4 5 Plaintiff appeared at the December 18, 2012 initial case management conference. Oh did not. Nor did any attorney appear on his behalf. 6 The court then issued an order directing Oh to appear on January 15, 2013 and show 7 cause why his answer should not be stricken. That order was electronically served on Katz for 8 forwarding purposes, and the court also mailed a copy of the order to Oh. to the court as undeliverable and with no forwarding address. According to plaintiff, mail sent 11 For the Northern District of California On December 26 and 28, 2012, the orders previously mailed to defendant were returned 10 United States District Court 9 to Oh has also been returned to plaintiff’s counsel’s office as undeliverable, and the phone 12 number plaintiff had for Oh is no longer in service. This court is told that plaintiff asked Katz 13 for other contact information for Oh and that Katz said he has no such information. 14 An attorney or party proceeding pro se has an obligation to provide the court with 15 current contact information. CIV. L.R. 3-11(a). The court may, without prejudice, strike an 16 answer when mail directed to an attorney or pro se party is returned to the court as 17 undeliverable and the court fails to receive within 60 days of the return a written 18 communication from the attorney or pro se party indicating a current address. CIV. L.R. 3- 19 11(b). 20 On January 15, 2013, the court issued a second order, directing defendant to appear on 21 March 19, 2013 and show cause why his answer should not be stricken. Defendant did not 22 appear; and, plaintiff advised that, despite efforts, he had not been able to obtain Oh’s current 23 contact information. 24 Although Katz (now withdrawn) previously said, in the parties’ Joint Case Management 25 Statement, that Oh consented to magistrate judge jurisdiction for all purposes, the court has not 26 received a signed consent form from either Katz or Oh. Accordingly, this court ORDERS the 27 Clerk of the Court to reassign this case to a District Judge. The undersigned further 28 RECOMMENDS that Oh’s answer be stricken, without prejudice, pursuant to Civil Local Rule 2 1 3-11(b). Any party may serve and file objections to this Report and Recommendation within 2 fourteen days after being served. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72. 3 4 SO ORDERED. Dated: April 23, 2013 5 HOWARD R. LLOYD 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 5:12-cv-04294-HRL Notice has been electronically mailed to: 2 Huy Ngoc Tran 3 Milton Katz , Esq 4 Tomas Eduardo Margain,,,, 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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