Board of Trustees of the Kern County Electrical Pension Fund et al v. Burgoni, et al, No. 1:2008cv00498 - Document 58 (E.D. Cal. 2011)

Court Description: ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS 55 , and AMENDED FINDINGS and RECOMMENDATIONS STRIKING DEFENDANTS' ANSWER AND ENTERING DEFAULT signed by Magistrate Judge Jennifer L. Thurston on 11/30/2011. Objections to F&R due by 12/14/2011. (Leon-Guerrero, A)
Download PDF
Board of Trustees of the Kern County Electrical Pension Fund et al v. Burgoni, et al Doc. 58 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 BOARD OF TRUSTEES OF THE KERN ) Case No.: 1:08-cv-00498 LJO JLT COUNTY ELECTRICAL PENSION FUND, ) et al., ) ORDER WITHDRAWING FINDINGS AND ) RECOMMENDATIONS Plaintiffs, ) ) (Doc. 55) v. ) ) AMENDED FINDINGS AND CHRISTOPHER BURGONI, et al., ) RECOMMENDATIONS STRIKING ) DEFENDANTS’ ANSWER AND ENTERING Defendants. ) DEFAULT DUE TO THEIR FAILURE TO _______________________________________ ) COMPLY WITH THE COURT’S ORDERS 17 18 In this matter, Plaintiff has sued an individual, Christopher Burgoni, and two corporations; 19 Tadoc Enterprises and Fulce Enterprises. (Doc. 36). For the following reasons, the Court 20 recommends Defendants’ answer be STRICKEN and that DEFAULT BE ENTERED. 21 I. Background 22 Initially, Defendants appeared through counsel and answered the First Amended Complaint 23 on July 22, 2010. (Doc. 38) On July 6, 2011, the Court granted the request of Defendants’ attorneys 24 to withdraw from their representation. (Doc. 46) On September 29, 2011, withdrawn counsel served 25 Defendants notice of the Court’s order granting the requested withdrawal. (Docs. 49-50) 26 In the meantime, on September 14, 2011, the Court issued its Order of Reassignment, in 27 which the Court informed the parties that the assignment of the action to Senior U.S. District Judge 28 Wanger was withdrawn. (Doc. 47). The parties were ordered “to affirmatively indicate whether they 1 Dockets.Justia.com 1 consent to or decline the consent of the U.S. Magistrate Judge pursuant to 28 USC § 636 (c) . . . 2 WITHIN 30 DAYS OF THIS ORDER.” Id. at 2 (emphasis in original). Consequently, the parties 3 were to file the form attached to the order, indicating their consent or decline no later than October 4 14, 2011. The parties were warned: “Failure to timely comply with this order will result in an Order 5 to Show Cause and may result in sanctions.” (Doc. 47 at 2). The Local Rules, corresponding with 6 Fed. R. Civ. P. 11, provide: “Failure of counsel or of a party to comply with . . . any order of the 7 Court may be grounds for the imposition by the Court of any and all sanctions . . . within the inherent 8 power of the Court.” LR 110. Further, a court may impose sanctions in exercising the “inherent 9 power to control [its] dockets.” Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 10 (9th Cir. 1986). To date, defendants Christopher Burgoni, Tadoc Enterprises, and Fulce Enterprises 11 (collectively, “Defendants”) have failed to comply with the Court’s Order. 12 On October 6, 2011, the Court ordered the corporate defendants, Tadoc Enterprises, and 13 Fulce Enterprises, to have their replacement counsel enter an appearance within 21 days. (Doc. 51) 14 Due to an error in the caption, on October 18, 2011, the Court’s issued its amended order to Tadoc 15 Enterprises and Fulce Enterprises, to have their replacement counsel enter an appearance within 21 16 days. (Doc. 52) As of the signing of this order, no appearance has been entered on behalf of either 17 corporate defendant. 18 Also on October 18, 2011, the Court issued an order to all of the defendants to show cause 19 within 14 days why their answer should not be stricken based upon their failure to file the form 20 indicating whether they consented to Magistrate Judge jurisdiction. (Doc. 53) To date, Defendants 21 have failed to comply with or otherwise respond to the Court’s Orders. 22 II. Failure to obey the Court’s orders 23 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a 24 party to comply with . . . any order of the Court may be grounds for the imposition by the Court of 25 any and all sanctions . . . within the inherent power of the Court.” LR 110. “District courts have 26 inherent power to control their dockets,” and in exercising that power, a court may impose sanctions 27 including dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 28 (9th Cir. 1986). A court may dismiss an action with prejudice, based on a party’s failure to prosecute 2 1 an action or failure to obey a court order, or failure to comply with local rules. See, e.g. Ferdik v. 2 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order 3 requiring amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 4 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 5 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 6 III. Discussion and Analysis 7 “It is a longstanding rule that [c]orporations and other unincorporated associations must 8 appear in court through an attorney.” D-Beam Ltd. P’ship v. Roller Derby Skates, Inc., 366 F.3d 972, 9 973-74 (9th Cir. 2004) (citation and quotation marks omitted, second modification in original); LR 10 183(a). Further, a court may sanction corporate defendants by striking their answer when they fail to 11 retain counsel to defend themselves. See Galtieri-Carlson v. Victoria M. Morton Enters., Inc., 2010 12 U.S. Dist. LEXIS 95335, at *3 (E.D. Cal. Aug. 26, 2010) (sanctioning corporate defendants by 13 striking their answer when they failed to retain alternate counsel after the withdrawal of their original 14 counsel); Rojas v. Hawgs Seafood Bar, Inc., 2009 U.S. Dist. LEXIS 41435 at *2 (N.D. Cal. May 5, 15 2009) (“When a corporation fails to retain counsel to represent it in an action, its answer may be 16 stricken and a default judgment entered against it”). 17 Pursuant to the local rule and applicable case law, the corporate defendants may not appear in 18 this case without counsel. The corporate defendants’ original counsel withdrew in July2011 and the 19 corporate defendants have failed to retain alternate counsel since that date. This inaction is in direct 20 violation of the court’s order. As such, the corporate defendants’ answer is recommended to be 21 stricken and default entered against them. 22 Moreover, all three defendants were warned that their failure to comply with the Court’s 23 order to file a notification regarding Magistrate Judge jurisdiction would result in sanctions. (Doc. 24 47 at 2) This warning was echoed in the Court’s order to show cause issued on October 18, 2011 in 25 which the Court warned that failure to timely comply with the would result in the imposition of “any 26 and all sanctions . . . within the inherent power of the Court.” As such, the Court recommends that 27 all defendants’ answers be stricken and default entered against them. 28 /// 3 1 2 IV. Findings and Recommendations The corporate defendants failed to comply with the Court’s order to appear through counsel. 3 Moreover, all of the defendants failed to comply with the Court’s order to consent to or decline the 4 jurisdiction of a magistrate judge, and the Court’s order to show cause why the matter should not be 5 dismissed. Accordingly, it is HEREBY RECOMMENDED: 6 1. Defendants’ Answer to the Amended Complaint be STRICKEN and DEFAULT BE 7 ENTERED against them for their failure to obey the Court’s orders dated September 8 14, 2011 and October 18, 2011. 9 These Findings and Recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the 11 Local Rules of Practice for the United States District Court, Eastern District of California. Within 12 14 days after being served with these Findings and Recommendations, Plaintiff may file written 13 objections with the Court. Such a document should be captioned “Objections to Magistrate Judge’s 14 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 15 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 16 1153 (9th Cir. 1991). 17 18 IT IS SO ORDERED. 19 Dated: November 30, 2011 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 4