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Legaspi v. California Licensed Vocational Nurses Association

September 3, 2008


The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge


This matter is before the court on plaintiff Virginia Legaspi's ("Legaspi" or "plaintiff") motion for leave to file an untimely opposition to defendant Catholic Healthcare West, Inc., dba St. Joseph's Medical Center's ("St. Joseph's") motion to dismiss for failure to prosecute. St Joseph's opposes the motion. For the reasons set forth below,*fn1 plaintiff's motion is DENIED.


Plaintiff Legaspi filed a complaint in this action on February 13, 2007. (Compl. [Docket #1], filed Feb. 13, 2007.) Subsequently, after defendants had filed answers to her complaint and the court issued a pretrial scheduling order, plaintiff's counsel, Jay Dyer ("Dyer") moved to withdraw as attorney of record. (Mot. to Withdraw as Attorney [Docket #13, filed Jan. 17, 2008.) Attached to his declaration in support of the motion, Dyer provided a letter, dated January 2, 2008, that he received from plaintiff Virginia Legaspi on January 3, 2008, which requested the immediate termination of Dyer's professional services. (Ex. C to Decl. of Jay Dyer ("Dyer Decl."), filed Jan. 17, 2008). Dyer also declared that he spoke to plaintiff on January 7, 2007, to (1) confirm her address; (2) confirm that she had not yet secured new counsel; and (3) inform plaintiff that he would be filing a motion to withdraw as well as a motion to extend the discovery deadline. (Dyer Decl. ¶ 11).

On February 13, 2008, the court granted plaintiff's counsel's motion to withdraw and plaintiff Legaspi was substituted in propria persona. (Order [Docket #22], filed Feb. 13, 2008.) As such, and pursuant to Local Rule 72-302(c)(21), the case was referred to the assigned Magistrate Judge, Gregory G. Hollows, for case management and recommendation(s) to the District Court Judge. (Id.) That same day, the court also filed a stipulation and order, extending discovery deadlines, in part because scheduled depositions had not taken place as a result of plaintiff's termination of her counsel. (Stipulation & Order [Docket #21], filed Feb. 13, 2008.)

On February 22, 2008, Nina Kani ("Kani"), counsel for St. Joseph's, caused plaintiff to be personally served with a Notice of Deposition at her residence, for a deposition set for March 10, 2008. (Decl. of Nina Kani in Supp. of Def.'s Resp. to Pl.'s Objections to Magistrate Judge's Findings & Recommendations ("Kani Decl."), filed July 10, 2008, ¶ 7.) Kani also served plaintiff with a letter explaining the obligation to appear for deposition and the potential consequences for failing to appear. (Id.) On February 25, 2008, Kani sent an additional letter to plaintiff's residence, advising her of the continued obligation to supplement discovery requests and to produce records concerning her new employment at her deposition. (Id. ¶ 8.) Kani attempted to reach plaintiff by telephone; she left two voicemails for Legaspi, requesting information as to whether plaintiff was available on the noticed date and/or whether plaintiff intended to appear. (Id. ¶ 9.)

On March 10, 2008, Kani appeared for plaintiff's deposition. (Id. ¶ 10.) Prior to going on the record, Kani attempted to reach Legaspi by telephone, but was unable to reach her. (Id.) Kani waited for one hour, but plaintiff did not appear and did not otherwise contact her. (Id.)

On March 17, 2008, Kani telephoned Legaspi at her home and left a voicemail requesting to meet and confer regarding her non- appearance and to schedule a new date for her deposition. (Id. ¶ 12.) Kani advised plaintiff that she would seek relief from the court if plaintiff did not contact her. (Id.) Legaspi did not contact plaintiff that day.

On March 18, 2008, Kani again attempted to contact Legaspi at her home. (Id.) Plaintiff's husband gave her an alternate phone number. (Id.) Kani contacted Legaspi at this number. Legaspi advised Kani that she had retained new counsel, but refused to provide her with the attorney's name and indicated that she could not provide Kani with new dates for the deposition without conferring with her attorney. (Id.) Kani requested that Legaspi's counsel contact her by the close of business. Kani did not hear from plaintiff or plaintiff's counsel on that date. (Id.)

St. Joseph's filed a motion to compel plaintiff's deposition and a request for sanctions on March 18, 2008. (Mot. to Compel [Docket #23], filed Mar. 18, 2008.) Plaintiff did not contact Kani prior to the hearing on the motion. (Kani Decl. ¶ 13.) Legaspi also failed to appear at the hearing on the motion on April 10, 2008. (Id.)

On April 15, 2008, Magistrate Judge Hollows issued an order, granting sanctions in the amount of $6,880.00 against plaintiff that were to be paid within 20 days of the order. (Order [Docket #26], filed Apr. 15, 2008.) At the time of the order, the discovery deadline of April 1, 2008 had passed. (Kani Decl. ¶ 14.) Plaintiff failed to comply with the court's order to pay the sanctions within 20 days and delayed making payment for two months, until she retained counsel on June 16, 2008. (Decl. of Virginia Legaspi in Supp. of Mot. for Leave to File Untimely Opp'n ("Legaspi Decl.") [Docket #45], filed July 8, 2008, ¶ 25.)

On April 21, 2008, St. Joseph's filed a Motion to Dismiss. (Id. ¶ 16.) Pursuant to the Federal Rules of Civil Procedure and the local rules, plaintiff was required to file her opposition by May 9, 2008. (Id.) Legaspi failed to file any opposition. (Id.) Neither plaintiff nor any representative of plaintiff attempted to contact St. Joseph's before the hearing. (Id.)

On May 29, 2008, plaintiff failed to appear at the hearing on defendant St. Joseph's motion to dismiss. (Id. ¶ 17.) Following the hearing, the court issued a minute order, stating that the case was recommended fo dismissal for plaintiff's failure to prosecute. (Id.)

On June 16, 2008, Kani received a telephone call from Herman Franck ("Franck"), informing her that he had been retained by Legaspi. (Id. ΒΆ 18.) Kani advised Franck that a minute order had ...

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