J&J Sports Production, Inc v. Castro et al

Filing 17

ORDER TO SHOW CAUSE Order to Show Cause Hearing set for 3/20/2013 02:00 PM. Show Cause Response due by 3/13/2013.. Signed by Judge Lucy H. Koh on 3/06/2013. (lhklc3, COURT STAFF) (Filed on 3/6/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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J&J SPORTS PRODUCTIONS, INC.,

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Plaintiff,
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vs.
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ENRIQUE SERRANO CASTRO, ROSALINDA )
REYNOSO, and DANIEL AVILA TULE,
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individually and d/b/a MI MEXICANO
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RESTAURANTE,
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Defendants.
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Case No.: 12-CV-05767-LHK
ORDER TO SHOW CAUSE WHY CASE
SHOULD NOT BE DISMISSED FOR
FAILURE TO PROSECUTE

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For the reasons stated herein, the Court ORDERS Plaintiff J&J Sports Productions, Inc.
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(“Plaintiff”) to Show Cause why this Case Should Not Be Dismissed for Failure to Prosecute.
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First, Plaintiff has not been diligent in serving the Defendants in this case. Plaintiff filed its
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complaint on November 9, 2012. See ECF No. 1. Prior to today, March 6, 2013, Plaintiff failed to
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submit any documentation demonstrating that a single Defendant was served properly. Plaintiff
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still has not served Defendant Daniel Avila Tule, individually and doing business as Mi Mexicano
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Restaurante. But see Fed. R. Civ. P. 4(m) (“If a defendant is not served within 120 days after the
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complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss
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the action without prejudice against that defendant or order that service be made within a specified
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time.”). Plaintiff’s records indicate that Plaintiff did not even attempt to serve Defendant Tule until
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Case No.: 12-CV-05767-LHK
ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE

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February 26, 2013, and has only made one attempt since. See Plaintiff’s Ex Parte Application for

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an Order Continuing Case Management Conference and Extending Time to Complete Service,

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ECF No. 13, at Ex. 1. Because the Court does not find that Plaintiff has been diligent in seeking to

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serve Defendant Tule, Plaintiff’s Ex Parte Motion to Extend Time to Complete Service, filed

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earlier today, is hereby DENIED.

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In addition, Plaintiff has failed to comply with the Court’s requirements in regard to Case

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Management Conferences. On December 20, 2012, the Court set a Case Management Conference

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for March 6, 2013, and stated that the Case Management Statement was due by February 27, 2013.

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See ECF No. 8. However, Plaintiff failed to file a timely joint case management statement in

United States District Court
For the Northern District of California

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violation of Civil Local Rule 16-10 of the United States District Court for the Northern District of

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California. Only after the Court ordered Plaintiff to file such as statement, see ECF No. 9, did

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Plaintiff comply, see ECF No. 11.

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Plaintiff also failed to comply with Civil Local Rule 16-10’s requirement that “[r]equests to

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participate in the conference by telephone must be filed and served at least 7 days before the

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conference or in accordance with the Standing Orders of the assigned Judge.” N.D. Cal. Civil L.

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Rule 16-10. Rather than filing the request to participate telephonically one week prior to the Case

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Management Conference, Plaintiff filed a Motion to Appear by Telephone only one day before the

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Court date. See ECF No. 10.

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Moreover, Plaintiff failed to appear at the Case Management Conference. Notably, at

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approximately 12:36 p.m. today, March 6, Plaintiff filed an Ex Parte Motion to Continue the Case

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Management Conference scheduled for 2:00 p.m., see ECF No. 13. The Court denied this Motion

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to Continue the Case Management Conference for failure to show good cause. See ECF No. 14.

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The Case Management Conference then proceeded as scheduled. Despite the Court’s Order,

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Plaintiff failed to participate. The Court then issued an Order to Show Cause Why this Case

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Should Not be Dismissed for Failure to Prosecute.

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After the Court issued the Order to Show Cause, the assistant for Plaintiff’s counsel e-

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mailed the Courtroom Deputy to state that Plaintiff’s counsel had “been on standby for the CMC at

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2pm” but that “the Court ha[d] not yet called and the Order did not indicate that Mr. Riley was to
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Case No.: 12-CV-05767-LHK
ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE

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initiate the call.” The Court’s Standing Order states explicitly that, if a request to participate

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telephonically in a hearing is granted, “the parties are directed to contact Court Call Phone

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Conferencing at [phone] in advance of the hearing to schedule a telephonic appearance and

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tell Court call you've been approved by Martha Parker Brown.” Standing Order on Scheduling

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Notes. Plaintiff’s confusion might be excusable if this were the first time that Plaintiff’s counsel,

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Mr. Riley, sought to appear telephonically before this Court. However, Mr. Riley has litigated

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approximately forty-five cases—if not more—before the undersigned judge and had never once

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appeared in Court in person. All of Mr. Riley’s appearances have been by telephone.

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Consequently, Mr. Riley’s claim that he was unfamiliar with Court Call Phone Conferencing

United States District Court
For the Northern District of California

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simply lacks credibility.

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Thus, the Court hereby ORDERS Plaintiff to Show Cause why this case should not be

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dismissed for failure to prosecute. Plaintiff has until March 13, 2013, to file a response to this

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Order to Show Cause. A hearing on this Order to Show Cause is set for Wednesday, March 20,

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2013, at 2:00 P.M. Plaintiff’s counsel is required to appear in person; no telephone appearances

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will be allowed. Plaintiffs’ failure to respond to this Order and to appear at the March 20, 2013

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hearing will result in dismissal with prejudice for failure to prosecute.

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IT IS SO ORDERED.

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Dated: March 6, 2013

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 12-CV-05767-LHK
ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE