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Park v. Bank of America

United States District Court, Ninth Circuit

October 18, 2013

JUNG MYN PARK, MIN SOOK SUH, Plaintiffs,
v.
BANK OF AMERICA; BANK OF AMERICA, N.A.; BRIAN T. MOYNIHAN, DAVID C. DARNELL; GARY G. LYNCH; THOMAS K. MONTAG and Does 1-XXXX, et. al., Defendants.

ORDER

LAWRENCE K. KARLTON, District Judge.

Pending before the court in the above-captioned case is defendants' motion to dismiss, originally scheduled to be heard on October 21, 2013. (ECF No. 7.) Plaintiffs, represented by Pamela J. Palmieri, failed to file a timely opposition or statement of non-opposition, as required by Local Rule 230(c). Accordingly, this court issued an order (i) continuing the hearing on the motion until November 18, 2013; (ii) directing plaintiffs to file an opposition or statement of non-opposition by Monday, October 13, 2013 at 4:30 p.m.; and (iii) ordering counsel for plaintiffs to show cause in writing, no later than October 16, 2013, as to why she should not be sanctioned for her failure to respond to the motion in a timely manner. (ECF No. 29.)

As plaintiffs failed to file an opposition or a statement of non-opposition, and counsel for plaintiffs failed to respond to the order to show cause, the court was prepared to dismiss this action. However, a review of the docket herein showed that plaintiffs had timely filed a status conference statement in anticipation of the Status (Pretrial Scheduling) Conference, currently set for November 4, 2013 at 2:00 p.m. The court contacted plaintiffs' counsel and instructed her to immediately file a response to the order to show cause, lest her clients face dismissal.

The response filed by plaintiffs' counsel (ECF No. 12) may charitably be described as the lamest received by this court in some years. Its upshot is that counsel was unaware of the motion to dismiss because she did not receive a physical copy of defendants' motion. Such an excuse would carry some weight in state court. But as Local Rule 135 makes clear, a "Notice of Electronic Filing" is automatically generated by the court's electronic case filing system at the time a document is filed, and "[s]ervice via this electronic Notice constitutes service pursuant to Fed.R.Civ.P. 5(b)(2)(E)." Plaintiffs' counsel has registered an email address with the court's electronic case filing system. She has shown herself to be sufficiently competent to electronically file both a complaint (ECF No. 1) and a status report (ECF No. 11). And the fact that she timely filed a status report demonstrates that she both received and reviewed the court's order setting a status conference herein (ECF No. 5). In other words, plaintiffs' counsel should have received electronic notice of the motion to dismiss, and complied with the Local Rules as to the deadline for filing an opposition or statement of non-opposition.[1]

While the court is strongly inclined to dismiss this action, it will not do so at this time, solely because it does not wish to forestall plaintiffs from having their day in court due to their counsel's errors. Nevertheless, plaintiffs' counsel is now on notice that she must henceforth diligently review her email and the electronic docket in this matter, and timely file all required documents, as the court will accept no further excuses going forward. Future failures of compliance may lead to dismissal, monetary sanctions, and/or notice to the State Bar of California of counsel's failure to competently perform her professional duties.

In light of the foregoing, the court hereby orders as follows:

[1] Counsel for plaintiffs, Pamela J. Palmieri, is SANCTIONED in the amount of one hundred and fifty dollars ($150.00), payable to the Clerk of the Court within fourteen (14) days of docketing of this order.
[2] The hearing on defendants' motion to dismiss is CONTINUED until January 13, 2014 at 10:00 a.m.
[3] Plaintiffs are DIRECTED to file an opposition to the motion to dismiss or a statement of non-opposition no later than November 18, 2013. Defendants may file any reply no later than December 9, 2013.
[4] The status conference herein is CONTINUED until January 27, 2014 at 2:00 p.m. and status conference reports are due fourteen (14) days before that date. Plaintiffs are DIRECTED to serve a copy of this order on any further defendants that they may serve in this matter.

IT IS SO ORDERED.


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