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Zurita v. Asset & Capital Management Group

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 19, 2009

JUAN ROBERTO ZURITA, PLAINTIFF,
v.
ASSET & CAPITAL MANAGEMENT GROUP, A CALIFORNIA CORPORATION, AND DOES 1-10, INCLUSIVE, DEFENDANT.

The opinion of the court was delivered by: Cathy Ann Bencivengo United States Magistrate Judge

ORDER SETTING SECOND OSC REQUIRING PERSONAL APPEARANCE OF THAI HAN, AGENT FOR SERVICE OF PROCESS OF ASSET & CAPITAL MANAGEMENT GROUP [Doc. No. 26]

On August 19, 2009, Plaintiff JUAN ROBERTO ZURITA filed an application for an order to show cause why a subpoena duces tecum should not be enforced. [Doc. No. 13.] A Subpoena in a Civil Case dated July 7, 2009 [Doc. Nos. 16 and 17], was served on the Custodian of Records of (non-appearing/defaulted Defendant) ASSET & CAPITAL MANAGEMENT GROUP on July 14, 2009 [Doc. No. 13-3, Exhibit 8; Doc. No. 16]. Plaintiff having duly served the subpoena upon the Custodian of Records of ASSET & CAPITAL MANAGEMENT GROUP, and ASSET & CAPITAL MANAGEMENT GROUP having failed to comply within the period designated in the subpoena, this issued on Order to Show Cause ("OSC") and ordered the following:

1. ASSET & CAPITAL MANAGEMENT GROUP shall appear on September 11, 2009, at 2:00 p.m. in Courtroom E of the United States Courthouse located at 940 Front St. San Diego, CA, 92101, and SHOW CAUSE why it should not be compelled to comply with the subpoena issued to it;

2. On or before August 27, 2009, Petitioner shall serve ASSET & CAPITAL MANAGEMENT GROUP with a copy of this Order to Show Cause along with the Application on which the Order is based and all supporting documents; and

3. On or before September 8, 2009, ASSET & CAPITAL MANAGEMENT GROUP shall file a response to this Order to Show Cause as to why the subpoena duces tecum should not be enforced. [Doc. No. 19.]

On August 29, 2009, plaintiff filed an ex parte application for a new hearing date for the OSC because plaintiff's counsel was unable to serve the OSC and underlying papers on ASSET & CAPITAL MANAGEMENT GROUP within the time period ordered by the court. [Doc. No. 20.] On September 1, 2009, this Court granted the ex parte application and reset the OSC date for October 9, 2009, at 1:30 p.m. [Doc. No. 21.] The Court's orders and the underlying application were then served on ASSET & CAPITAL MANAGEMENT GROUP. [Doc. Nos. 22 and 23.]

A hearing was held before Magistrate Judge Cathy Ann Bencivengo on October 9, 2009, at 1:30 p.m. Craig Fagan, Esq., appeared on behalf of plaintiff. ASSET & CAPITAL MANAGEMENT GROUP did not appear. On October 9, 2009, this Court granted plaintiff's request for an order enforcing the subpoena and directed ASSET & CAPITAL MANAGEMENT GROUP to produce copies of the documents described in Exhibit 1 of the subpoena [Doc. Nos. 16 and 17], to Craig Fagan, attorney for plaintiff, at 3505 Camino del Rio South, Suite 250, San Diego, CA 92108, on or before November 13, 2009. [Doc. No. 25.] In the order, ASSET & CAPITAL MANAGEMENT GROUP was notified that to comply with the Order may subject it to sanctions for contempt of court. [Id.] Plaintiff served the Order on ASSET & CAPITAL MANAGEMENT GROUP. [Doc. No. 26-1.]

On November 13, 2009, plaintiff filed an Ex Parte Application to Set a Motion for OSC re Contempt for the President and Owner of Defendant Asset & Capital Management Group, Thai Han, due to defendant's failure to comply with the Court's Order's of October 9, 2009 (hereinafter the "second OSC request"). [Doc. No. 26.] Plaintiff requests that a second OSC hearing be set and that Thai Han be ordered to personally appear at the OSC hearing. [Doc. No. 26 at 5.] According to plaintiff, Thai Han is the owner, president and agent for service of process of ASSET & CAPITAL MANAGEMENT GROUP. [Doc. No. 26-1 at 2, 3.]

FOR GOOD CAUSE SHOWN, IT IS HEREBY ORDERED: Plaintiff's second OSC request is GRANTED IN PART.

THAI HAN, in his capacity of agent for service of process for ASSET & CAPITAL MANAGEMENT, IS HEREBY ORDERED TO APPEAR IN PERSON in this Court, located at 940 Front St., San Diego, California, Department E, on December 16, 2009, at 9:30 a.m. to show cause as to ASSET & CAPITAL MANAGEMENT GROUP has failed to respond to the subpoena. Plaintiff personally serve Thai Han with a copy of this order, as well as copies of all of the previous orders and subpoenas in this matter, on or before November 30, 2009. Proof of such service shall be filed with the Clerk of the Court as soon as practicable.

20091119

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