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Triumph Furniture Processing-Export Joint Stock Co. v. Everest Furniture Co.

United States District Court, N.D. California

August 25, 2014

TRIUMPH FURNITURE PROCESSING-EXPORT JOINT STOCK COMPANY, Plaintiff,
v.
EVEREST FURNITURE COMPANY, Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING IN PART PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT, AND VACATING AUGUST 28, 2014 CASE MANAGEMENT CONFERENCE

SUSAN ILLSTON, District Judge.

On August 29, 2013, Magistrate Judge Cousins issued a report and recommendation (the "Report") in this case. Docket No. 10. The Report recommends granting in part and denying in part plaintiff's motion for default judgment, and recommends awarding plaintiff $223, 414 in damages on plaintiff's breach of contract claim. Id. at 9. The Report recommends denying plaintiff's motion for default judgment on plaintiff's fraud claim. Id.

Although defendant was served with the complaint and summons, Docket No. 5, defendant failed to answer or otherwise respond. After the Clerk of the Court entered default, plaintiff moved for default judgment. Docket Nos. 7, 8. Defendant did not file any response to the motion.

The Report issued on August 29, 2013. Docket No. 10. Pursuant to 28 U.S.C. ยง 636(b)(1), the parties had fourteen days from service of the Report to file written objections. See also Fed.R.Civ.P. 72(b). The case was reassigned to the undersigned judge on August 30, 2013. Docket No. 11. Neither party filed objections to the Report by the appropriate deadline.

On September 24, 2013, this Court issued an Order to Show Cause why this case should not be transferred to the Eastern District of California based on improper venue in this District. Docket No. 12. Plaintiff's counsel did not file a response to the Order to Show Cause, and the Court transferred this case to the Eastern District on October 9, 2013. Docket No. 13.

After the case was transferred, plaintiff's counsel failed to file required status conference statements and failed to appear at several status conferences in the Eastern District of California. See generally Docket No. 14. United States Magistrate Judge Austin issued an Order to Show Cause regarding why the case should not be dismissed for failure to prosecute, to which plaintiff's counsel responded that he had not received any of the orders of the Eastern District, nor had he received this Court's Order to Show Cause regarding transfer. Id. After further proceedings, Judge Austin transferred the case back to the Northern District, finding that although the complaint alleged that defendant's office was located in Fresno, California (in the Eastern District), the documents attached to the complaint showed that the defendant's office was located in Fremont, California (in the Northern District). The case was transferred to this District on March 6, 2014, and a case management conference is scheduled for August 28, 2014.

On August 13, 2014, plaintiff's counsel filed a statement requesting that the Court enter judgment based upon Judge Cousins' Report and Recommendation. Defendant has not filed any response to plaintiff's filing, nor has defendant made an appearance in this case since it was transferred back to this District. The Court has reviewed the Report and the docket in this case, and the Court agrees with Judge Cousins' analysis. Accordingly, the Court ADOPTS the Report and Recommendation and GRANTS IN PART plaintiff's motion for default judgment. The Court awards plaintiff $223, 414 in compensatory damages. The Case Management Conference scheduled for August 28, 2014 is VACATED.

IT IS SO ORDERED.


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