IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 16, 2012
GEORGE S. LOUIE, PLAINTIFF,
PAULA & STEVENSON [SIC] ERICSON DBA WHITEY'S JOLLY KONE; WH SHAU-LINN, WH CAN XIANG DBA LEE'S CANTON RESTAURANT, DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AFTER STATUS CONFERENCE
This matter came before the court for a Status (Pretrial Scheduling) Conference on May 10, 2012 ("Status Conference").*fn1 (Minutes, May 10, 2012, Dkt. No. 26.) Attorney Chad J. Wood, who serves as special counsel for Alan S. Fukushima, the Chapter 7 bankruptcy trustee who owns plaintiff's claims in this case, appeared on plaintiff's behalf. Attorney Robert C. Lorbeer appeared on behalf of defendants Paula and Steven Ericson, doing business as Whitey's Jolly Kone ("Ericson Defendants"). No appearance was made on behalf of defendants Wh Shau-Linn or Wh Can Xiang, who have not yet appeared in this case.
The court and counsel discussed several issues at the Status Conference that militate in favor of briefly delaying the scheduling of this case. Three of those issues are specifically addressed here.
First, the Ericson Defendants have consistently argued that the claims asserted against them have absolutely no connection to the claims asserted against defendants Wh ShauLinn and Wh Can Xiang in regards to Lee's Canton Restaurant. Mr. Wood agreed with the Ericson Defendants' contention. Accordingly, plaintiff and the Ericson Defendants stipulated on the record at the Status Conference to the severance of the claims asserted defendants Wh ShauLinn and Wh Can Xiang from this action. The court approves the stipulation regarding severance and, as stated in more detail below, directs the Clerk of Court to open a new civil action in which plaintiff may pursue claims against defendants Wh Shau-Linn and Wh Can Xiang in regards to Lee's Canton Restaurant.
Second, the record reveals that plaintiff failed to serve defendants Wh Shau-Linn and Wh Can Xiang with the summons and complaint in this action within the time permitted in Federal Rule of Civil Procedure 4(m). However, the undersigned nevertheless grants plaintiff 30 days, as detailed further below, to effectuate proper service on defendants Wh Shau-Linn and Wh Can Xiang in the new action. Plaintiff's failure to effectuate service in the time provided may very well lead to the dismissal of plaintiff's claims against defendants Wh Shau-Linn and Wh Can Xiang.
Third, the Ericson Defendants represented on the record that they and plaintiff might be able to resolve plaintiff's claims against the Ericson Defendants within 30 days of the May 10, 2012 Status Conference. Because the claims remaining in this case might be resolved in the short term, the court delays the scheduling of this case.
For the reasons stated at the Status Conference and stated above, IT IS HEREBY ORDERED that:
1. The claims asserted against defendants Wh Shau-Linn and Wh Can Xiang, doing business as Lee's Canton Restaurant, are severed from this action.
2. The Clerk of Court is directed to open a new civil action entitled "George S. Louie v. Wh Shau-Linn and Wh Can Xiang, doing business as Lee's Canton Restaurant," and to file this order as the first event in the newly opened action. The Clerk of Court is further directed to assign United States District Judge John A. Mendez and United States Magistrate Judge Kendall J. Newman to the newly opened action. (See Related Case Order, Nov. 8, 2011, Dkt. No. 17.) Plaintiff's consent to the jurisdiction of a magistrate judge filed in this case shall be effective in the newly opened action.
3. No later than 14 days after the opening of the new case, plaintiff shall file a First Amended Complaint in the newly opened action that is complete in itself and addresses only the claims asserted against defendants Wh Shau-Linn and Wh Can Xiang, doing business as Lee's Canton Restaurant. Plaintiff shall serve defendants Wh Shau-Linn and Wh Can Xiang with the summons, First Amended Complaint, and related documents within 30 days of issuance of the summons in the newly opened case.
4. No later than 30 days from the date of this order, plaintiff and defendants Paula and Steven Ericson, doing business as Whitey's Jolly Kone, shall file a joint status report in this case, No. 2:11-cv-00886 KJN, addressing the status of settlement discussions. The court will thereafter determine whether to set deadlines and a trial date in this case.
IT IS SO ORDERED.