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J&J Sports Prods., Inc. v. Castro

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
Mar 25, 2013
Case No.: 12-CV-05767-LHK (N.D. Cal. Mar. 25, 2013)

Opinion

Case No.: 12-CV-05767-LHK

03-25-2013

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.


ORDER RE: ORDER TO SHOW CAUSE

On March 6, 2013, for the four reasons set forth below, this Court issued an Order to Show Cause Why Case Should Not Be Dismissed for Failure to Prosecute ("Order to Show Cause"). ECF No. 17.

First, prior to March 6, 2013, Plaintiff had not submitted any documentation demonstrating that a single Defendant had been served despite the fact that the Complaint was filed on November 9, 2012, and the 120 day deadline for service imposed by the Federal Rules of Civil Procedure was set to expire on March 9, 2013. Fed. R. Civ. P. 4(m). As of March 6, 2013, Plaintiff still had not served Defendant Daniel Tule and did not even attempt service until February 26, 3013.

Second, Plaintiff had failed to file a Joint Case Management Statement on February 27, 2013, in violation of Civil Local Rule 16-10 of the United States District Court of the Northern District of California. As a result, on March 4, 2013, this Court ordered Plaintiff to file a Joint Case Management Statement by noon on March 5, 2013. ECF No. 9.

Third, Plaintiff had failed to comply with Civil Local Rule 16-10's requirement that "[r]equests to participate in the conference by telephone must be filed and served at least 7 days before the conference or in accordance with the Standing Orders of the assigned Judge." N.D. Cal. Civil L. Rule 16-10.

Finally, Plaintiff did not appear at the Case Management Conference on March 6, 2013 at 2:00 p.m. despite the fact that the Court had denied Plaintiff s Ex Parte Motion to Continue the Case Management Conference that Plaintiff had filed less than an hour and a half before the Case Management Conference.

The March 6, 2013 Order to Show Cause informed Plaintiff that failure to respond to the Order to Show Cause by March 13, 2013 and failure to appear at the March 20, 2013 Order to Show Cause hearing would result in dismissal of this case with prejudice for failure to prosecute. ECF No. 17.

On March 13, 2013, Plaintiff filed a Response to the Order to Show Cause in which he explained that Defendants Enrique Serrano Castro and Rosalinda Reynoso had in fact been served on February 26, 2013, although Proofs of Service were not filed until March 6, 2013. ECF No. 19. Plaintiff's counsel, Mr. Thomas P. Riley, also submitted a Declaration from his Senior Administrative Assistant, Ms. Stefanie M. Martinez, outlining Mr. Riley's office's practice of deferring service of suit papers. Ms. Martinez's Declaration identified three reasons for this practice: (1) because defense attorneys "comb the public records and notify defendants of pending law suits," Mr. Riley's office is able to settle many cases "without the expense of service"; (2) Mr. Riley's office waits to confirm that defendants do not have any recent bankruptcy filings or "other issues" before incurring the cost of service; and (3) the large volume of Mr. Riley's practice and the desire to avoid using a multitude of process servers. Decl. of Stefanie M. Martinez in Support of Plaintiff's Response to the Court's Order to Show Cause Dated March 6, 2013, ECF No. 22.

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 Conferences and to extend time to complete service, creating a significant burden for this Court. As a result, Mr. Riley represented to the Court that he would change his office's practice for all cases in the San Jose Division of the Northern District of California, to ensure that service is attempted promptly after filing suit. He also represented that he would ensure filing of proof of service within three days after a defendant is served. Mr. Riley further represented that he will comply with this Court's Standing Orders and Civil Local Rules.

At the March 20, 2013 hearing on the Order to Show Cause, the Court GRANTED Plaintiff's oral motion to dismiss Defendant Avila Tule from this action without prejudice. Plaintiff shall serve a copy of this Order on Defendant Daniel Avila Tule.

As for Defendants Enrique Serrano Castro and Rosalinda Reynoso, the Court declines to dismiss this case for failure to prosecute based upon Plaintiff's timely service of process on these two Defendants, Plaintiff's timely response to the Order to Show Cause, and Plaintiff's appearance at the Order to Show Cause hearing. An initial Case Management Conference shall take place on June 19, 2013, at 2:00 p.m. Plaintiff is ordered to serve a copy of this Order on Defendants Castro and Reynoso.

IT IS SO ORDERED.

___________

LUCY H. KOH

United States District Judge


Summaries of

J&J Sports Prods., Inc. v. Castro

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
Mar 25, 2013
Case No.: 12-CV-05767-LHK (N.D. Cal. Mar. 25, 2013)
Case details for

J&J Sports Prods., Inc. v. Castro

Case Details

Full title:J&J SPORTS PRODUCTIONS, INC., Plaintiff, v. ENRIQUE SERRANO CASTRO…

Court:UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

Date published: Mar 25, 2013

Citations

Case No.: 12-CV-05767-LHK (N.D. Cal. Mar. 25, 2013)