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Robert Icho and Icho Group, Inc v. Packetswitch.Com

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


March 15, 2012

ROBERT ICHO AND ICHO GROUP, INC.,
PLAINTIFFS,
v.
PACKETSWITCH.COM, INC. ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Paul S. Grewal United States Magistrate Judge

(Re: Docket Nos. 199, 200)

ORDER SETTING JUDGMENT DEBTOR EXAM

On February 29, 2012, the court issued an order to show cause as to Plaintiffs Robert Icho and Icho Group, Inc. ("Plaintiffs"), asking why the court should order a judgment debtor exam at 17 Plaintiffs' bequest in light of Plaintiffs' earlier failure to appear at the first examination ordered by 18 the court, also at Plaintiffs' bequest.*fn1 On March 13, 2011, Plaintiffs responded to the order to show 19 cause. Plaintiffs explained that the earlier failure to appear was based on their understanding that 20 the examination would not proceed as scheduled because, despite numerous attempts to serve 21

Defendant MC Hammer, aka Stanley Burrell ("Defendant") with the notice of the judgment debtor 22 exam, those attempts had been unsuccessful. To Plaintiffs' knowledge, Defendant is without 23 counsel, leaving Plaintiffs with no way to contact him other than by personal service. Although 2

Plaintiffs were unable to provide the court with a satisfactory explanation as to why Defendant was 3 present for the scheduled examination even though all attempts at service had failed, Plaintiffs 4 conceded that they should have -- but did not -- alert the court to the fact that service had failed and 5 the examination would not proceed. Plaintiffs request that the court re-order the judgment debtor 6 examination for May 15, 2012 or later in order to allow sufficient time for service.*fn2

The court accepts Plaintiffs' good faith explanation for their non-appearance at the December exam. The court cannot accept, however, the disregard for the court's role in ordering 9 the appearance of a party. In this case, Plaintiffs requested a court order requiring Defendant's 10 appearance on December 9, 2011. The order as requested threatened the Defendant with 11 punishment for contempt of court, attorney fees, and even arrest if he failed to appear. The order did not condition this threat on Plaintiffs' successfully completing service. The court's imprimatur 13 made the order official. Plaintiffs' many and undoubtedly frustrating attempts to serve Defendant 14 do not excuse Plaintiffs' failure to consider updating the court on the status of the exam so that the 15 court might correct the public docket entry and prevent both an unnecessary trip to San Jose by 16

Defendant and his attorney, as well as the court's having made its resources available on that date 17 and time. 18 19 reasonable attorney's fees and costs of Defendant having to appear a second time. The court 20 therefore will issue a separate order for the appearance and examination of Defendant at 10:00 a.m. 21 on June 1, 2012. 22

Plaintiffs are entitled to proceed with the judgment debtor exam but must cover the

IT IS SO ORDERED.


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