Neumont University, LLC v. Little Bizzy, LLC et al

Filing 34

ORDER that Little Bizzy shall retain counsel who shall file a notice of appearance in accordance with the Local Rules of Practice no later than January 28, 2013. Signed by Magistrate Judge Peggy A. Leen on 1/11/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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NEUMONT UNIVERSITY, LLC, et al,

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Plaintiff,
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vs.
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LITTLE BIZZY, LLC, et al.,
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Defendants. )
__________________________________________)

Case No. 2:12-cv-01395-GMN-PAL
ORDER

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This matter is before the court on Defendants Little Bizzy, LLC’s (“Little Bizzy”) and Jesse

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Nickles’ (“Nickles”) Response (Dkt. #30) to the court’s Order to Show Cause (Dkt. #29) filed January

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2, 2013. The court has considered Defendants’ Response and Plaintiff Neumont University, LLC’s

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(“Neumont”) Reply (Dkt. #32) and Exhibit (Dkt. #33), both filed January 9, 2013.

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On November 7, 2012, the court entered an Order (Dkt. #25) directing Little Bizzy to retain

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counsel no later than December 5, 2012, because a corporation cannot appear except through counsel.

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See generally Roland v. California Men’s Colony, 506 U.S. 194, 201-02 (1993); United States v. High

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County Broadcasting Co., Inc., 3 F.3d 1244, 1245 (9th Cir. 1993). On December 4, 2012, Defendants

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filed a Motion to Stay Discovery Pending Ruling on Motion to Dismiss (Dkt. #27), requesting the court

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vacate its Order requiring Little Bizzy to retain counsel pending a ruling on the Motion to Dismiss (Dkt.

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#17). The court entered an Order and Order to Show Cause (Dkt. #29) denying the Motion to Stay and

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ordering Little Bizzy to show cause by December 31, 2012, why its responsive pleading should not be

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stricken and default judgment entered against it for failure to defend and failure to comply with the

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court’s order to retain and designate counsel of record. See Order to Show Cause (Dkt. #29) at 3.

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Defendants’ Response to the Order to Show Cause represents that Nickles is the only managing
member of Little Bizzy, resides outside of the United States and has “extremely limited access” to a

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telephone. Additionally, the holiday season affected Little Bizzy’s ability to retain counsel, and the

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Response contends that “an extension past the busy holiday season may eventually yield counsel willing

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to represent” Little Bizzy. Response at 2. Defendants also contend the court has not ruled on their

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request to amend their responsive pleading.

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Neumont’s Reply asserts that Little Bizzy was ordered to retain counsel on November 7, 2012,

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“long before the holiday season began.” Reply at 2:13. Additionally, Neumont contends Defendants

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could have used the internet and email to retain counsel if telephone access was unavailable to Nickles.

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Neumont argues Defendants’ Response is merely a delay tactic. Although Defendants have been

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unable to comply with court Orders, Neumont asserts Nickles has been able to write and disseminate a

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series of articles on the internet that “harass and defame Neumont.” Reply at 3:7. Thus, Little Bizzy

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should be required to retain counsel.

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Defendants assert the court has not ruled on their request to amend their responsive pleading.

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This has no bearing on Little Bizzy’s failure to retain counsel as required by controlling Ninth Circuit

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authority and this court’s Orders. Moreover, there is no motion for leave to amend on file. Defendants’

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prior request to amend the complaint in the Motion to Stay (Dkt # 27) and in response to denial of the

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motion to stay and the Order to Show Cause is not a motion to amend. Additionally, Defendants have

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not complied with Local Rule of Civil Procedure 15-1 which requires a party seeking leave to amend a

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pleading to attach the proposed amended pleading to the motion for leave to amend. See LR 15-1. The

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court cannot evaluate the propriety of a proposed amended responsive pleading without seeing it. If and

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when Defendants file an appropriate motion for leave to amend their responsive pleading that complies

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with LR 15-1, the district judge will consider it.

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On November 7, 2012, Little Bizzy was ordered to retain counsel by December 5, 2012. When

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it failed to comply, the court denied its Motion to Stay, and gave it until December 31, 2012, to retain

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counsel or suffer sanctions. The district judge granted Plaintiff’s request for a settlement conference

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and referred the matter to the undersigned to set one. A settlement conference is scheduled on February

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7, 2013. Little Bizzy may not appear at that court ordered conference except through counsel. Its

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failure to retain counsel as ordered has unnecessarily multiplied proceedings in this case and threatens

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to disrupt the court’s schedule. As Mr. Nickles represents he has contacted twenty-three different law
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firms and legal aid organizations in the Las Vegas area in a good faith effort to find counsel, the court

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will grant Little Bizzy one final opportunity to retain counsel.

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Having reviewed and considered the matter,

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IT IS ORDERED:

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1.

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Little Bizzy shall retain counsel who shall file a notice of appearance in accordance with
the Local Rules of Practice no later than January 28, 2013.

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Failure to comply with this order will result in a recommendation to the district judge

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that Little Bizzy’s responsive pleading be stricken and default judgment be entered

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against it for failure to retain counsel and failure to comply with multiple orders of the

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court.
Dated this 10th day of January, 2013.
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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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