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

Filing 27

ORDER re 17 Order to Show Cause. Signed by Judge Lucy H. Koh on March 25, 2013. (lhklc2, COURT STAFF) (Filed on 3/25/2013)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 8 SAN JOSE DIVISION 11 12 13 14 15 16 17 18 19 J&J SPORTS PRODUCTIONS, INC., ) ) Plaintiff, ) v. ) ) ENRIQUE SERRANO CASTRO, ROSALINDA ) REYNOSO, AND DANIEL AVILA TULE, ) individually and d/b/a MI MEXICANO ) RESTAURANTE, ) ) Defendants. ) ) Case No.: 12-CV-05767-LHK ORDER RE: ORDER TO SHOW CAUSE On March 6, 2013, for the four reasons set forth below, this Court issued an Order to Show 20 Cause Why Case Should Not Be Dismissed for Failure to Prosecute (“Order to Show Cause”). 21 ECF No. 17. 22 First, prior to March 6, 2013, Plaintiff had not submitted any documentation demonstrating 23 that a single Defendant had been served despite the fact that the Complaint was filed on November 24 9, 2012, and the 120 day deadline for service imposed by the Federal Rules of Civil Procedure was 25 set to expire on March 9, 2013. Fed. R. Civ. P. 4(m). As of March 6, 2013, Plaintiff still had not 26 served Defendant Daniel Tule and did not even attempt service until February 26, 3013. 27 Second, Plaintiff had failed to file a Joint Case Management Statement on February 27, 28 2013, in violation of Civil Local Rule 16-10 of the United States District Court of the Northern 1 Case No.: 12-CV-05767-LHK ORDER RE: ORDER TO SHOW CAUSE 1 District of California. As a result, on March 4, 2013, this Court ordered Plaintiff to file a Joint 2 Case Management Statement by noon on March 5, 2013. ECF No. 9. 3 Third, Plaintiff had failed to comply with Civil Local Rule 16-10’s requirement that 4 “[r]equests to participate in the conference by telephone must be filed and served at least 7 days 5 before the conference or in accordance with the Standing Orders of the assigned Judge.” N.D. Cal. 6 Civil L. Rule 16-10. 7 Finally, Plaintiff did not appear at the Case Management Conference on March 6, 2013 at 8 2:00 p.m. despite the fact that the Court had denied Plaintiff’s Ex Parte Motion to Continue the 9 Case Management Conference that Plaintiff had filed less than an hour and a half before the Case United States District Court For the Northern District of California 10 11 Management Conference. The March 6, 2013 Order to Show Cause informed Plaintiff that failure to respond to the 12 Order to Show Cause by March 13, 2013 and failure to appear at the March 20, 2013 Order to 13 Show Cause hearing would result in dismissal of this case with prejudice for failure to prosecute. 14 ECF No. 17. 15 On March 13, 2013, Plaintiff filed a Response to the Order to Show Cause in which he 16 explained that Defendants Enrique Serrano Castro and Rosalinda Reynoso had in fact been served 17 on February 26, 2013, although Proofs of Service were not filed until March 6, 2013. ECF No. 19. 18 Plaintiff’s counsel, Mr. Thomas P. Riley, also submitted a Declaration from his Senior 19 Administrative Assistant, Ms. Stefanie M. Martinez, outlining Mr. Riley’s office’s practice of 20 deferring service of suit papers. Ms. Martinez’s Declaration identified three reasons for this 21 practice: (1) because defense attorneys “comb the public records and notify defendants of pending 22 law suits,” Mr. Riley’s office is able to settle many cases “without the expense of service”; (2) Mr. 23 Riley’s office waits to confirm that defendants do not have any recent bankruptcy filings or “other 24 issues” before incurring the cost of service; and (3) the large volume of Mr. Riley’s practice and 25 the desire to avoid using a multitude of process servers. Decl. of Stefanie M. Martinez in Support 26 of Plaintiff’s Response to the Court’s Order to Show Cause Dated March 6, 2013, ECF No. 22. 27 28 At the March 20, 2013 hearing on the Order to Show Cause, Mr. Riley recognized that his office’s practice has resulted in frequent ex parte requests to continue Case Management 2 Case No.: 12-CV-05767-LHK ORDER RE: ORDER TO SHOW CAUSE 1 Conferences and to extend time to complete service, creating a significant burden for this Court. 2 As a result, Mr. Riley represented to the Court that he would change his office’s practice for all 3 cases in the San Jose Division of the Northern District of California, to ensure that service is 4 attempted promptly after filing suit. He also represented that he would ensure filing of proof of 5 service within three days after a defendant is served. Mr. Riley further represented that he will 6 comply with this Court’s Standing Orders and Civil Local Rules. 7 At the March 20, 2013 hearing on the Order to Show Cause, the Court GRANTED 8 Plaintiff’s oral motion to dismiss Defendant Avila Tule from this action without prejudice. 9 Plaintiff shall serve a copy of this Order on Defendant Daniel Avila Tule. United States District Court For the Northern District of California 10 As for Defendants Enrique Serrano Castro and Rosalinda Reynoso, the Court declines to 11 dismiss this case for failure to prosecute based upon Plaintiff’s timely service of process on these 12 two Defendants, Plaintiff’s timely response to the Order to Show Cause, and Plaintiff’s appearance 13 at the Order to Show Cause hearing. An initial Case Management Conference shall take place on 14 June 19, 2013, at 2:00 p.m. Plaintiff is ordered to serve a copy of this Order on Defendants Castro 15 and Reynoso. 16 IT IS SO ORDERED. 17 Dated: March 25, 2013 _________________________________ LUCY H. KOH United States District Judge 18 19 20 21 22 23 24 25 26 27 28 3 Case No.: 12-CV-05767-LHK ORDER RE: ORDER TO SHOW CAUSE

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