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Lino Nshimba v. Warehouse

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION


January 11, 2012

LINO NSHIMBA,
PLAINTIFF,
v.
WAREHOUSE, INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Richard Seeborg United States District Judge

*E-Filed 1/12/12*

ORDER GRANTING MOTION TO REOPEN ACTION AND TO PERMIT 14 PLAINTIFF TO APPEAR IN PRO SE LOWE'S HOME IMPROVEMENT 15

On December 9, 2011 this action was dismissed pursuant to Rule 37(b)(2)(A)(v) of the Federal Rules of Civil Procedure, as a sanction for plaintiff's failure to comply with discovery 21 obligations. The dismissal order expressly declined to enter default judgment against plaintiff, and 22 provided that the dismissal was without prejudice, because the record did not permit a determination 23 as to the extent to which, if any, plaintiff, as opposed to his counsel, was at fault. Plaintiff, acting 24 without counsel, has now filed a motion to reopen the case and to substitute himself in pro se in the 25 place of his counsel of record. Plaintiff asserts that while he had repeated difficulties reaching his 26 counsel to obtain information regarding the status of this case, counsel had reassured him that it was 27 proceeding normally and that there was nothing else he needed to do. Plaintiff contends he only 28 learned this action had been dismissed when he made independent inquiries to Court staff. 2

Plaintiffs' assertions are plausible in light of the conduct of his attorney reflected in the record. 3

Defendant has opposed the motion to reopen, relying on West Coast Theater Corp. v. City of Portland, 897 F.2d 1519 (9th Cir. 1990) for the proposition that, "the faults and defaults of the 5 attorney may be imputed to, and their consequences visited upon, his or her client. Id. at 1523. 6

West Coast, however, in turn relied on In re Hill, 775 F.2d 1385 (9th Cir. 1985), which more fully 7 explained that where "the impact of the sanction imposed is primarily against the client," discretion 8 should be exercised with caution. Id. at 1387. In the analogous context of dismissal under Rule 9 41(b) for failure to prosecute or to comply with a court order, the Hill court observed, "[a]pplication 10 of the remedy rests within the sound discretion of the court, but since it may severely punish a party not responsible for the alleged dereliction of his counsel, the Rule should only be invoked in extreme circumstances." Id. (quoting Industrial Bldg. Materials, Inc. v. Interchemical Corp., 437 F.2d 1336 (9th Cir. 1970)).

Accordingly, good cause appearing, plaintiff's motion to reopen is granted, as is his motion 15 to substitute himself in pro se. The parties shall appear for a further Case Management Conference on February 16, 2012, with a joint Case Conference Management Statement to be submitted one week in advance. Plaintiff may wish to seek assistance from the Legal Help Center, a free service of 18 the Volunteer Legal Services Program, by calling 415/782.9000 x8657 or signing up for an 19 appointment on the 15th Floor of the Courthouse, Room 2796. At the Legal Help Center, plaintiff 20 may speak with an attorney who may be able to provide basic legal help but not legal representation.

IT IS SO ORDERED. 23 24

20120111

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