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National Bank of Arizona v. Kobra Associates

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 10, 2011

NATIONAL BANK OF ARIZONA,
PLAINTIFF,
v.
KOBRA ASSOCIATES, INC.; FOOD MANAGEMENT, INC.; ABOLGHASSEM ALIZADEH; KOBRA ALIZADEH; AND AUSTIN F. WALLESTAD,
DEFENDANTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER STRIKING AUSTIN F. WALLESTAD'S ANSWER AND DISCHARGING ORDER TO SHOW SERVICE CAUSE CONCERNING OTHER DEFENDANTS

Since no defendant appeared at the final pretrial conference held on July 25, 2011, an order issued on July 25, 2011, directing each defendant to show cause ("OSC") in a writing to be filed no later than August 5, 2011 "why sanctions should not be imposed against him, her and/or his or her counsel" under Federal Rule of Civil Procedure 16(f) for failing to appear at the conference. (ECF No. 178.)

The entity "debtor defendants" filed a response to the OSC on July 28, 2011, in which they stated that they "believed the [OSC] was directed only to the individual nondebtor defendants [since] a [bankruptcy] stay remains in place as to [them]." (ECF No. 179, 1 n.1.) The OSC was not intended to require a response from any entity defendant, since it only concerned the individual nondebetor defendants.

Defendants Abolghassem Alizadeh and Kobra Alizadeh, who are in pro per, filed a response to the OSC on August 5, 2011, through attorney Paul A. Warner, Esq. In light of the representations Mr. Warner made in the response, no sanction is imposed against these defendants, but a final pretrial order will issue.

Defendant Austin F. Wallestad, who is in pro per, did not respond to the OSC. The OSC warned defendants that sanctions could include "striking any pleading defendants filed, and an order authorizing plaintiff to prosecute its case against defendants as a default matter[.]" (ECF No. 178 at 1:23-28.) Since it appears that Mr. Wallestad has abandoned defending against plaintiff's claims and consents to having an adverse judgment entered against him, his answer (ECF No. 73) is stricken.

Further, Plaintiff shall take the steps necessary to prosecute this action as a default matter against Defendant Austin F. Wallestad; Plaintiff shall file a motion for entry of default judgment against Defendant Austin F. Wallestad before the Magistrate Judge within fourteen (14) days of the date on which this Order is filed. If Plaintiff fails to timely file the motion, Plaintiff shall show cause in writing no later than 4:00 p.m. on August 26, 2011, why this defendant should not be dismissed for failure of prosecution.

IT IS SO ORDERED.

20110810

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