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January 16, 2004.


The opinion of the court was delivered by: JAMES LARSON, Magistrate Judge

Dismissal with Prejudice Granting Docket #54 Order permitting Plaintiff's counsel to Order permitting Plaintiff's counsel to
The motion of Defendant Lucent Technologies, Inc. ("Lucent") to dismiss the complaint of Plaintiff Capital Communications ("Capital") and the motion of Capital's counsel to withdraw came on for hearing before this Court on December 17, 2003. Capital appeared telephonically by its Maryland counsel Barton D. Moorstein. Lucent appeared by its counsel Katherine K. Ikeda, ORRICK, HERRINGTON & SUTCLIFFE. All parties have consented to this Court's jurisdiction as required by 28 U.S.C. § 636(c). The Court considered the written pleadings and oral argument of counsel and hereby grants both motions. Page 2


  On December 28, 2001, Capital filed its complaint in the Circuit Court for Montgomery County, Maryland against Lucent's predecessor, Ascend Communications, Inc., for breach of contract. Lucent removed the case to the U.S. District Court for the District of Maryland and in February 2002 filed a motion to transfer venue to the Northern District of California, which was granted. Capital failed to oppose the motion to transfer.

  Once in this district, Lucent answered Capital's complaint and filed a counterclaim for overpayment of commissions. Capital failed to respond and its default was entered June 6, 2002.

  Since that time Capital has failed to make its initial disclosures, to file a discovery plan or to obtain local counsel until it was expressly ordered to do so by the Court. Capital's Maryland counsel pleaded ignorance of the Local Rules for this district, but eventually applied for and received admission pro hac vice, and obtained local counsel. Local counsel appeared at a case management conference. Both sides filed motions, Lucent for dismissal for failure to prosecute, Capital to set aside the default. Shortly, however, Capital's local counsel moved to withdraw on the basis that his client had failed both to communicate and to cooperate with him. The Court granted the motion.

  Capital obtained new local counsel, after having been given a deadline by the Court, and on April 21, 2003 the Court denied Lucent's motion to dismiss and set aside the entry of default against Capital.

  Since May 2003, Lucent has been unable to obtain any cooperation from Capital, in participating in Alternative Dispute Resolution ("ADR") or discovery. In the two years of its existence, the case has made virtually no progress toward resolution.

  In their motion for permission to withdraw Barton D. Moorstein and local counsel Paul J. Steiner inform the Court that their attempts to communicate with Capital or obtain its cooperation and payment for their work have been futile. Mr. Moorstein tried to contact Capital's President, Andrew Powell, by telephone and by first class and certified mail, at the company's last known address, with no response. (Declaration of Barton D. Moorstein) Page 3


  This Court has authority to dismiss a complaint for lack of prosecution. Fed.R. Civ. P.41(b).

  "Although there is indeed a policy favoring disposition [of a case] on the merits, it is the responsibility of the moving party to move toward that disposition at a reasonable pace, and to refrain from dilatory and evasive tactics." Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991). A defendant is prejudiced for purposes of a motion to dismiss if forced to expend additional time and resources due to a plaintiffs' failure to prosecute. Id. at 651. The law presumes injury from unreasonable delay. In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994).

  In the two years since this case was filed, Lucent, the defendant, has had to take the initiative and the Court has had to intervene repeatedly to prompt Capital to tend to its obligations. This Court finds that Capital has inexcusably failed to prosecute its case. It does not retain local counsel, communicate with counsel, or participate in either discovery or ADR.

  This pattern of neglect and delay has prejudiced Lucent, because it has had to make several court appearances at which Capital either failed to appear or was not prepared to participate meaningfully and because Lucent has had to file multiple motions to force Capital to act, if only to react. Lucent has had to attend case management conferences where there was no appearance by Capital, to obtain entry of default against Capital and to bring this very motion to dismiss because of Capital's neglect. Capital offers no excuse for its multiple failures to prosecute its own case.

  Capital failed even to cooperate with its own attorneys, to the point where they are ...

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