Tom Ver LLC v. Organic Alliance, Inc et al

Filing 143

PRETRIAL CONFERENCE ORDER. Signed by Judge Lucy H. Koh on July 30, 2015. (lhklc1, COURT STAFF) (Filed on 7/30/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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Plaintiff,

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PRETRIAL CONFERENCE ORDER

v.

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Case No.13-cv-03506-LHK

TOM VER LLC,

ORGANIC ALLIANCE, INC, et al.,

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Defendants.

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Plaintiff’s Attorney: Jason Klinowski
Defendant Parker Booth did not appear

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The Court held a pretrial conference on July 30, 2015. Defendant Parker Booth did not

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appear.

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At the pretrial conference, Plaintiff represented that it intended to try its claims against not
only Defendant Parker, but also Defendants Christopher White and Organic Alliance, Inc. Default
has been entered against Christopher White since March 27, 2014, ECF No. 74, and against
Organic Alliance since September 16, 2013, ECF No. 30.

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The Court explained on the record why the Court has tentatively determined that
proceeding at trial against Defendants White and Organic Alliance would not be appropriate in the
instant case.
More specifically, this action began two years ago when Plaintiff filed its complaint on
July 30, 2013. ECF No. 1. In the last two years, the Court has ruled on and issued orders granting
an ex parte application for a temporary restraining order, ECF No. 11; granting preliminary
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Case No. 13-cv-03506-LHK
PRETRIAL CONFERENCE ORDER

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United States District Court
Northern District of California

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injunction, ECF No. 18; denying motion for sanctions and finding as moot motion to enforce
temporary restraining order, ECF No. 53; five case management orders following five case
management conferences, ECF Nos. 42, 90, 105, 128, 136; and order granting motions for
summary judgment by Defendants Rosenthal and Brookstein, ECF No. 126.
In addition to these orders and case management conferences, the Court has specifically
addressed the issue of default judgment with respect to Defendants White and Organic Alliance
multiple times. Plaintiff first requested that the Clerk of the Court enter default against Defendant
Organic Alliance on September 5, 2013, ECF No. 22, and against Defendant White on March 21,
2014, ECF No. 72. Plaintiff filed its first round of motions for default judgment against
Defendants Organic Alliance and Christopher White over a year ago on June 12, 2014. ECF Nos.
79, 80. On June 30, 2014, the Clerk denied those motions without prejudice for failure to provide
appropriate supporting documentation and informed Plaintiff that it could file the motion for
disposition by the Court. ECF No. 82.
Three months later, on September 3, 2014, Plaintiff filed amended motions for default
judgment against Defendants Organic Alliance and White. ECF Nos. 86, 87. On December 15,
2014, the Court denied Plaintiff’s motion, once more without prejudice, because Plaintiff’s
motions failed to comply with Civil Local Rules 7-2(b) and 7-4(a). ECF No. 98. More specifically,
Plaintiff’s motion failed to cite a single case, make any argument concerning why default
judgment would be appropriate, and did not weigh the controlling factors for default judgment
under Eitel v. McKool, 782 F.2d 1470 (9th Cir. 1986).
At the March 11, 2015, case management conference, the Court specifically cautioned
Plaintiff that any renewed motion for default judgment must cite the pertinent legal authority and
provide relevant argument as to why default judgment against Defendants Organic Alliance and
White would be appropriate. The Court also expressly admonished Plaintiff that failure to do so
would result in a denial of default judgment with prejudice.
On May 28, 2015, Plaintiff filed its third round of motions for default judgment against
Defendants Organic Alliance and White. ECF No. 134. Despite the Court’s express admonishment
on the record and the prior two denials of Plaintiff’s motions for default judgment, Plaintiff once
more failed to cite any legal authority or make any argument with respect to why default judgment
should be entered against Defendants Organic Alliance and White. For the third time, Plaintiff
failed to cite the Eitel factors. Instead, Plaintiff’s motion focused solely on the propriety of
attorney’s fees and justification for the amount of attorney’s fees.
On June 17, 2015, the Court denied Plaintiff’s motions for default judgment with
prejudice. ECF No. 135. In addition to failing to comply with the Court’s order and the Civil
Local Rules, Plaintiff’s deficient submissions left the Court with no basis to determine whether the
Court could properly exercise personal or subject-matter jurisdiction and whether Plaintiff had
shown the basic elements of Plaintiff’s claims against Defendants Organic Alliance and White.
At the pretrial conference, Plaintiff requested that the Court consider allowing Plaintiff to
file a fourth set of motions for default judgment against Defendants Organic Alliance and White,
or allowing Plaintiff to go to trial against these absent Defendants. As Plaintiff had not made such
a request in its pretrial statement and was unprepared to cite any authority to the Court in support
of its request, the Court took a more than two hour recess to allow Plaintiff’s counsel to find
pertinent legal authority.

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Following a recess, Plaintiff cited Bird v. Reese, 875 F.2d 256 (9th Cir. 1989), for the
proposition that a denial of a motion for default judgment is not a final, appealable order; In re
Villegas, 132 B.R. 742 (9th Cir. BAP 1991), for the proposition that the entry of final judgment in
favor of a defaulting party following the denial of a motion for default judgment is an abuse of
discretion; and In re McGee, 359 B.R. 764 (9th Cir. BAP 2006), for the proposition that Plaintiff
is entitled to a hearing on its motions for default judgment. Relying on these cases, Plaintiff
argued that it was entitled to a hearing on its claims against Defendants Organic Alliance and
White.
While the Court explained, on the record, why these cases are likely distinguishable given
the unique procedural posture of the instant action, including the two-year long history of this
action and the numerous attendant orders and proceedings, the Court will allow Plaintiff to file a
five page brief on whether Plaintiff should be allowed to proceed against Defendants White and
Organic Alliance at trial and/or by way of a fourth motion for default judgment. Plaintiff shall file
any brief, no longer than five pages, by Monday, August 3, 2015.
Trial remains as set on August 17, 2015, at 9 a.m. Should Defendant Parker Booth fail to
appear at trial, the Court will direct the Clerk of the Court to enter default against Defendant Booth
and set a briefing schedule for any motion for default judgment against Defendant Booth.
The Court again refers Defendant Booth to the Federal Pro Se Program. Mr. Kevin
Knestrick, the staff attorney for the program, is available at 408-297-1480. The Court strongly
encourages Mr. Booth to contact Mr. Knestrick as soon as possible.

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The Court suspended its pretrial filing requirements as laid out in its bench pretrial
standing order. Plaintiff is excused from complying with those requirements. Plaintiff shall,
however, be prepared with five sets of any exhibits that it intends to use at trial on August 17,
2015.

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IT IS SO ORDERED.

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Dated: July 30, 2015

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______________________________________
LUCY H. KOH
United States District Judge

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Case No. 13-cv-03506-LHK
PRETRIAL CONFERENCE ORDER