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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*E-FILED: April 23, 2013*

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NOT FOR CITATION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. 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.
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Plaintiff sues under federal and state law for wages that allegedly were earned, but

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remain unpaid. The complaint was filed on August 15, 2012. Defendant Oh subsequently

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appeared through attorney Milton Katz, who filed an answer on Oh’s behalf. (See Dkt. No. 10).

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Shortly after, Katz moved to withdraw as counsel of record, asserting that Oh failed to

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pay his fees and refused to provide records Katz deemed necessary for the defense of this

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action. Katz stated that he sent Oh a copy of that motion. The court received no opposition to

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it. And, Katz’s motion to withdraw was granted, subject to the condition that papers could

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continue to be served on him for forwarding purposes, unless and until Oh appeared through

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other counsel or pro se. (See Dkt. No. 15, December 4, 2012 Order). In that same order, this

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court re-set the initial case management conference for December 18, 2012. Oh was ordered to

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appear at the conference in person, unless he retained other counsel by that time.

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The court’s December 4, 2012 order was electronically served on Katz for forwarding

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purposes through the court’s ECF system. Additionally, the court mailed a copy of the order to

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Oh at the address listed for defendant in Katz’s motion papers.

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Plaintiff appeared at the December 18, 2012 initial case management conference. Oh
did not. Nor did any attorney appear on his behalf.

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The court then issued an order directing Oh to appear on January 15, 2013 and show

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cause why his answer should not be stricken. That order was electronically served on Katz for

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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

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For the Northern District of California

On December 26 and 28, 2012, the orders previously mailed to defendant were returned

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United States District Court

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to Oh has also been returned to plaintiff’s counsel’s office as undeliverable, and the phone

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number plaintiff had for Oh is no longer in service. This court is told that plaintiff asked Katz

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for other contact information for Oh and that Katz said he has no such information.

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An attorney or party proceeding pro se has an obligation to provide the court with

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current contact information. CIV. L.R. 3-11(a). The court may, without prejudice, strike an

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answer when mail directed to an attorney or pro se party is returned to the court as

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undeliverable and the court fails to receive within 60 days of the return a written

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communication from the attorney or pro se party indicating a current address. CIV. L.R. 3-

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11(b).

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On January 15, 2013, the court issued a second order, directing defendant to appear on

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March 19, 2013 and show cause why his answer should not be stricken. Defendant did not

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appear; and, plaintiff advised that, despite efforts, he had not been able to obtain Oh’s current

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contact information.

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Although Katz (now withdrawn) previously said, in the parties’ Joint Case Management

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Statement, that Oh consented to magistrate judge jurisdiction for all purposes, the court has not

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received a signed consent form from either Katz or Oh. Accordingly, this court ORDERS the

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Clerk of the Court to reassign this case to a District Judge. The undersigned further

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RECOMMENDS that Oh’s answer be stricken, without prejudice, pursuant to Civil Local Rule
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3-11(b). Any party may serve and file objections to this Report and Recommendation within

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fourteen days after being served. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72.

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SO ORDERED.
Dated: April 23, 2013

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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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5:12-cv-04294-HRL Notice has been electronically mailed to:

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Huy Ngoc Tran

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Milton Katz , Esq

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Tomas Eduardo Margain [e-mail], [e-mail],
[e-mail], [e-mail], [e-mail]

[e-mail]
[e-mail]

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For the Northern District of California

United States District Court

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