The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
On December 29, 2010, the Clerk of Court entered defendant's
default.*fn1 (Clerk's Cert. of Entry of Def., Dkt. No.
6.) The court has since denied two motions for default judgment filed
by plaintiff because a Chapter 7 bankruptcy trustee,*fn2
and not plaintiff, has standing to pursue the claim at issue
in this action. (See Order, Mar. 29, 2011, Dkt. No. 14; Order, Apr. 7,
2011, Dkt. No. 17.) Plaintiff agrees that he lacks standing to pursue
the underlying claim. (See Response to the Court's Mar. 29, 2011 Order
at 2-3, Dkt. No. 19.) Plaintiff identified the Chapter 7 trustee as Jeffry Locke of Novato, California. (Pl.'s Decl.
¶ 5, Dkt. No. 18.)
In an order entered May 26, 2011, the court ordered the following: (1) "Plaintiff shall promptly notify the Chapter 7 bankruptcy trustee, Jeffry Locke, of this action and serve a copy of [the May 26, 2011] on Mr. Locke"; and (2) "[w]ithin seven days of plaintiff's compliance with [the May 26, 2011] order, he shall file a written notice with the court confirming such compliance." (Order, May 26, 2011, Dkt. No. 20.) Neither plaintiff nor Mr. Locke filed anything with the court in response to the court's May 26, 2011 order.
In light of the lack of activity in this case, the court ordered plaintiff to show cause "why this case should not be dismissed for plaintiff's failure to comply with the court's order." (Order to Show Cause ("OSC"), Apr. 10, 2012, Dkt. No. 21.) Plaintiff filed a timely response to the OSC (Dkt. No. 22). Plaintiff explains that he filed the court's May 26, 2011 order and other relevant documents in the bankruptcy case, which resulted in service on Locke. (Response to OSC at 2 & Ex. 1.) The court's independent review of the bankruptcy court's docket confirmed that plaintiff indeed filed the court's May 26, 2011 order and other documents on June 17, 2011. (In re Beste, No. 10-13558, Dkt. No. 86 (N.D. Bankr.).) Accordingly, Locke has had notice of this case, and the court's desire to determine whether Locke intends to pursue plaintiff's claims, since at least June 17, 2011.
In light of plaintiff's response, the court discharges the April 10, 2012 OSC as to plaintiff. The court orders Locke to file a response to this order that, in essence, explains Locke's intentions vis-a-vis plaintiff's claim in this case.
Accordingly, IT IS HEREBY ORDERED that:
1. The court's OSC filed on April 10, 2012, is discharged as to plaintiff.
2. On or before August 3, 2012, trustee Jeffry Locke shall respond to this order in writing and explain: (1) why he has not appeared in this case despite having had notice of this case since approximately June 17, 2011; (2) whether he intends to pursue plaintiff's claim in this court or otherwise resolve the claim through the bankruptcy proceedings.
3. The Clerk of Court is directed to mail this order to Jeffry Locke and his counsel at the following addresses:
Jeffry Locke 530 Alameda Del Prado #396 Novato, CA 94949 Johnson C.W. Lee Stromsheim & Associates 201 California Street, #350 San Francisco, CA 94111