Prussin et al v. Bekins Van Lines, LLC et al
Filing
67
ORDER DIRECTING BEKINS LLC TO SHOW CAUSE WHY TERMINATING SANCTIONS SHOULD NOT BE IMPOSED. Show Cause Response due by 8/21/2015. Gregg Garfinkel, who remains on this docket solely for forwarding purposes, shall promptly file a proof of service on Bekins LLC as to this order. Signed by Magistrate Judge Howard R. Lloyd on 8/5/2015. (hrllc2, COURT STAFF) (Filed on 8/5/2015)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
SAN JOSE DIVISION
United States District Court
Northern District of California
11
JEFFREY A. PRUSSIN; JUDY M.
PRUSSIN,
12
Case No. 5:13-cv-02874-HRL
Plaintiffs,
13
v.
14
15
BEKINS VAN LINES, LLC; BEKINS VAN
LINES, INC.; TRIPLE CROWN
MAFFUCCI STORAGE CORPORATION,
16
ORDER DIRECTING BEKINS LLC TO
SHOW CAUSE WHY TERMINATING
SANCTIONS SHOULD NOT BE
IMPOSED
Re: Dkt. No. 63
Defendant.
17
18
Plaintiffs filed this suit, asserting claims for negligence and for violation of the Carmack
19
Amendment, 49 U.S.C. § 14706(c)(1)(A) for damage to their personal property allegedly
20
sustained during a cross-country move. Bekins LLC is now the sole remaining defendant in this
21
case.1
22
Bekins LLC initially was represented by counsel and answered the complaint; but, it
23
otherwise did not participate in this litigation. According to plaintiffs, Bekins LLC’s apparent
24
decision to abandon its defense of this matter required them to spend additional time and resources
25
litigating this case. For example, early in the case, plaintiffs advised that all parties agreed to
26
27
28
1
Early on, plaintiffs voluntarily dismissed defendant Bekins Van Lines, Inc. And, earlier this
year, plaintiffs settled their claims against defendant Triple Crown Maffucci Storage Corporation
(TCM). TCM voluntarily dismissed its cross-claims against Bekins LLC without prejudice.
1
arbitrate this matter. So, the initial case management conference was vacated and the case was
2
administratively closed for several months while the parties were to arbitrate plaintiffs’ claims.
3
But, the planned arbitration with the originally chosen provider fell through. And, when plaintiffs
4
asked defendants whether they would be willing to proceed with a different provider, Bekins LLC
5
did not respond; and, TCM said that it did not want to resolve the matter in a different forum than
6
Bekins LLC. Thus, at plaintiffs’ request, the action was re-opened in March 2014, and Bekins
7
LLC remained largely absent from the proceedings.
8
It wasn’t until earlier this year that this court was told that Bekins LLC reportedly was
dissolved. And, indeed, in a subsequent motion to withdraw as counsel of record, Bekins LLC’s
10
attorney confirmed as much. The motion to withdraw was granted on condition that papers could
11
United States District Court
Northern District of California
9
continue to be served on counsel for forwarding purposes unless and until Bekins LLC appeared
12
through other counsel. In that order, Bekins LLC was advised that it could only appear in this
13
matter through an attorney. Defendant was further advised that it retained all of the obligations of
14
a litigant and that its failure to appoint an attorney could lead to an order striking its pleadings or
15
to the entry of its default. (Dkt. 55).
16
Shortly after, plaintiffs (with leave of court) filed a Fed. R. Civ. P. 37 motion to compel
17
Bekins LLC to respond to discovery. On May 19, 2015, that motion was granted. Bekins LLC
18
was ordered to produce responsive discovery (with no objections, other than for attorney-client
19
privileged matters) and to pay $1,200 in plaintiffs’ fees and costs incurred in bringing the motion.
20
Plaintiffs now advise that Bekins LLC has not complied with that order. Pursuant to Fed.
21
22
R. Civ. P. 37(c), they seek terminating sanctions as to Bekins LLC.
If a party fails to obey an order to provide or permit discovery, the court may impose
23
sanctions, including striking pleadings in whole or in part. Fed. R. Civ. P. 37(b)(2)(A)(iii).
24
“Where the sanction results in default, the sanctioned party’s violations must be due to the
25
willfulness, bad faith, or fault of the party.” Hester v. Vision Airlines, Inc., 687 F.3d 1162, 1169
26
(9th Cir. 2012) (citation omitted). In determining whether such sanctions are appropriate, courts
27
must consider five factors:
28
(2) the court’s need to manage its docket; (3) the risk of prejudice to the [opposing party]; (4) the
“(1) the public’s interest in expeditious resolution of litigation;
2
1
public policy favoring disposition of cases on their merits; and (5) the availability of less drastic
2
sanctions.” Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004) (citations
3
omitted). “Where a court order is violated, the first and second factors will favor sanctions and the
4
fourth will cut against them.” Id. Thus, whether terminating sanctions are appropriate depends on
5
the third and fifth factors. Id.
6
The public’s interest in expeditious resolution of litigation and the court’s need to manage
7
its docket have been adversely affected by Bekins LLC’s failure to participate in these
8
proceedings. For the reasons discussed above, it appears that at some point early in this case,
9
Bekins LLC made a decision to willfully abandon its defense of this matter, including
participation in discovery. Yet, it wasn’t until several months ago that this court was apprised of
11
United States District Court
Northern District of California
10
defendant’s dissolution (the details of which remain murky).
12
The Ninth Circuit has observed that a party suffers prejudice if the opposing party’s
13
actions impair its ability to go to trial or threaten to interfere with the rightful decision of the case.
14
Henry v. Gill Industries, Inc., 983 F.2d 943, 948 (9th Cir. 1993). Here, Bekins LLC’s failure to
15
respond to discovery or to otherwise participate in these proceedings has hampered plaintiffs’
16
ability to resolve this matter. And, while it is preferable to resolve matters on the merits, Bekins
17
LLC’s lack of participation has made that impossible.
18
As for the availability of less drastic sanctions, this court previously imposed monetary
19
sanctions for Bekins LLC’s failure to respond to plaintiffs’ discovery requests. The order
20
imposing those sanctions, however, went unheeded. And, Bekins LLC is expressly advised that,
21
as a consequence, it is now in peril of having its answer stricken and its default entered.
22
Accordingly, no later than August 21, 2015, Bekins LLC shall file a written response to
23
this order, showing cause why its answer should not be stricken and its default entered for failure
24
to participate in discovery and this litigation. Unless otherwise ordered, the matter will then be
25
deemed submitted without further hearing or briefing.
26
Gregg Garfinkel, who remains on this docket solely for forwarding purposes, shall
27
28
3
1
promptly file a proof of service on Bekins LLC as to this order.
2
SO ORDERED.
3
Dated: August 5, 2015
________________________
HOWARD R. LLOYD
United States Magistrate Judge
4
5
6
7
8
9
10
United States District Court
Northern District of California
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
1
2
5:13-cv-02874-HRL Notice has been electronically mailed to:
Allen Gabriel Haroutounian
aharoutounian@nemecek-cole.com
3
Frank Xavier Dipolito
fdipolito@swaindipolito.com, swaindipolito@lawyer.com
4
5
Gavin E Kogan
gavin@lg-attorneys.com
6
Gregg S. Garfinkel
7
Ross Ian Landau
ggarfinkel@nemecek-cole.com
rlandau@swaindipolito.com
8
9
10
United States District Court
Northern District of California
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?