U.S. Equal Employment Opportunity Commission v. Maurizio's Trattoria Italiana, LLC et al

Filing 28

ORDER Regarding Defendant's Failure to Comply with the Court's 27 August 9, 2019 Order. Defendant was provided approximately sixty days to obtain new counsel and failed to do so. Despite this failure, the Court is providing Defendant with one last opportunity to obtain counsel. The Court continues the stay until 11/8/2019. Defendant is ordered to obtain new counsel and the new lawyer must file a Notice of Appearance on or before 11/8/2019. If Defendant fails to comply with the Court 's order for a second time, the stay will lift on 11/8/2019 and Plaintiff will be able to proceed forward with discovery and to seek any appropriate remedies. If Defendant is not represented by counsel, it will not be able to participate in discovery or litigation and if it fails to participate in discovery and litigation, its answer may be stricken and a default judgment may be entered against it. Signed by Magistrate Judge Barbara Lynn Major on 10/7/2019.(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 18cv338-MMA(BLM)

U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

ORDER REGARDING DEFENDANT’S
FAILURE TO COMPLY WITH THE
COURT’S AUGUST 9, 2019 ORDER- ECF
NO. 27

Plaintiff,
v.
MAURIZIO'S TRATTORIA ITALIANA, LLC
AND DOES 1-10,
Defendant.

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On August 7, 2019, Defendant notified the Court that its counsel had passed away and

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requested a stay to allow it time to find and retain a new attorney. ECF No. 24. The Court

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granted Defendant’s request, ordered Defendant to retain new counsel by September 5, 2019,

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and stayed the case until October 7, 2019. ECF No. 27. Defendant has failed to comply with

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the Court’s order and has not obtained new counsel. See Docket.

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Civil Local Rule 83.3(j) states that

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Only natural persons representing their individual interests in propria persona may
appear in court without representation by an attorney permitted to practice
pursuant to Civil Local Rule 83.3. All other parties, including corporations,
partnerships and other legal entities, may appear in court only through an attorney
permitted to practice pursuant to Civil Local Rule 83.3(j).

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18cv338-MMA(BLM)

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Because Defendant is not represented by counsel, Defendant will not be able to participate in

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discovery or any other aspect of litigation after the stay lifts.

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Commission v. SW Argyll Investments, LLC, 2012 WL 12885225, at *1 (S.D. Cal., June 11, 2012)

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(“[I]t is well established that a corporation, unincorporated association, partnership or other

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such entity may appear only through counsel.”) (citing Rowland v. Cal. Men's Colony, 506 U.S.

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194, 201-02 (1993) (“It has been the law for the better part of two centuries ... that a

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corporation may appear in the federal courts only through licensed counsel,” citing Osborn v.

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Bank of United States, 22 U.S. 738 (1824)).

Securities and Exchange

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Here, Plaintiff had noticed six depositions of Defendant’s owner and employees for

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September 6, 13, and 27, 2019. ECF No. 23 at 2. Those depositions were stayed but they likely

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will be re-noticed as soon as the stay is lifted. If Defendant has not retained counsel, Defendant

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will not be able to participate in the discovery process or any other aspect of this litigation. If

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Defendant does not retain counsel and does not participate in the discovery process and

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litigation, Defendant’s answer may be stricken and default judgment entered against it. See

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Osgood v. Main Streat Marketing, LLC, 2017 WL 3194460, at *2 (S.D. Cal., July 27, 2017) (“when

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a corporation fails to retain counsel to represent it in an action, its answer may be stricken and

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a default judgment entered against it”) (citing Emp. Painters’ Trust v. Ethan Enters., Inc., 480

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F.3d 993, 998 (9th Cir. 2007)); see also United Pacific Energy Operations and Consulting, Inc.

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v. Gas and Oil Technologies, Inc., 2012 WL 12953446, at *3 (C.D. Cal., Mar. 30, 2012) (“If the

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corporation fails to appear through counsel within a reasonable time, the action may be

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dismissed or a default judgment entered.”); Oracle America, Inc. v. Serv. Key, LLC, 2013 WL

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1195620, at *2-3 (N.D. Cal. Mar. 22, 2013) (ordering that if substitute counsel is not found, the

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court will strike answer and direct entry of default, and then plaintiff may file a motion for default

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judgment).

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Defendant was provided approximately sixty days to obtain new counsel and failed to do

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so. Despite this failure, the Court is providing Defendant with one last opportunity to obtain

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counsel. The Court continues the stay until November 8, 2019. Defendant is ordered to

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obtain new counsel and the new lawyer must file a Notice of Appearance on or before
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18cv338-MMA(BLM)

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November 8, 2019. If Defendant fails to comply with the Court’s order for a second time, the

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stay will lift on November 8, 2019 and Plaintiff will be able to proceed forward with discovery

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and to seek any appropriate remedies. If Defendant is not represented by counsel, it will not

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be able to participate in discovery or litigation and if it fails to participate in discovery and

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litigation, its answer may be stricken and a default judgment may be entered against it.

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IT IS SO ORDERED.
Dated: 10/7/2019

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18cv338-MMA(BLM)