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Swapna v. Deshraj

United States District Court, N.D. California

March 2, 2018



          JACQUELINE SCOTT CORLEY United States Magistrate Judge

         Plaintiff Arunasree Swapna filed this action alleging state law privacy and tort claims against her ex-husband Defendant Uday Krishna Deshraj in September 2016. (Dkt. No. 1.) Defendant's motion to dismiss and for summary judgment is now pending before the Court as is the Court's Order to Show Cause to Plaintiff for failure to prosecute and for sanctions.[1] (Dkt. Nos. 60, 66.) After carefully considering the arguments and briefing submitted, the Court concludes that oral argument is unnecessary, see Civ. L.R. 7-1(b), and denies Defendant's motion without prejudice and sanctions Plaintiff for her failure to comply with Court Orders.


         Plaintiff alleges that during their marriage Defendant took intimate photographs of her without her consent. (Complaint at ¶¶ 30-33.) After their acrimonious divorce, Defendant uploaded these photographs to the internet including to a Wordpress blog that he created in Plaintiff's name. (Id. at ¶¶ 39-41.) Plaintiff discovered the blog and photographs in November 2015. (Id. at ¶ 42.) Plaintiff alleges that the publication of these photographs online has caused her severe harm, emotional distress, and impeded her ability to maintain employment. (Id. at ¶ 45.)

         In September 2016, Plaintiff filed this action alleging claims for (1) violation of California Civil Code § 1708.85; (2) invasion of privacy; (3) intentional infliction of emotional distress; and (4) violation of California Penal Code § 528.5. (Dkt. No. 1.) Although Plaintiff was initially represented by counsel, the Court granted her counsel's motion to withdraw on July 11, 2017. (Dkt. No. 33.) Following Plaintiff's counsel's withdrawal, the Court held several case management conferences and issued multiple orders in an effort to resolve outstanding discovery issues. (Dkt. Nos. 44, 45, 47, 50, 51.) Ultimately, on August 17, 2017, the Court held a case management conference at which dates for the parties' depositions in the Court's jury room were set, and a schedule was set for the parties' responses to all outstanding discovery. (Dkt. No. 51.) The Court also referred the parties for a Settlement Conference before Magistrate Judge James at her earliest convenience. (Dkt. No. 51.)

         The Settlement Conference was subsequently set for October 25, 2017. (Dkt. No. 52.) Defendant's counsel thereafter moved to withdraw because Defendant wished to represent himself. (Dkt. No. 55.) The Court granted the motion and at the parties' request reset the parties' depositions to occur after the Settlement Conference. (Dkt. Nos. 56 & 57.) Defendant then filed a motion to dismiss and for summary judgment. (Dkt. No. 59.) Because the parties had previously agreed to have dispositive motions heard after their Settlement Conference, the Court vacated the hearing date and ordered that the briefing schedule would be reset if necessary following the Settlement Conference. (Dkt. No. 61.)

         On October 23, 2017, Plaintiff notified Judge James that she would not appear for her Settlement Conference scheduled for October 25. (Dkt. No. 63.) Judge James issued an order continuing the Settlement Conference to February 6, 2018. (Id.) The court stated in relevant part:

Plaintiff is ORDERED by the Court to appear for the Settlement Conference on February 6, 2018. She will not be excused. Plaintiff does not have counsel and the settlement cannot go forward without her presence. If Plaintiff does not appear at the Settlement Conference, in person, the Court shall issue an Order to Show.


         On February 6, 2018, Defendant appeared for the Settlement Conference, but Plaintiff did not do so despite the Court's order that she appear in person. (Dkt. Nos. 63, 65.) The Court thus issued an order to show cause as to why this action should not be dismissed and why Plaintiff should not otherwise be sanctioned for her failure to appear at the mandatory Settlement Conference. (Dkt. No. 66.) Defendant was ordered to submit a statement detailing his expenses, if any, for appearing at the February 6, 2018 settlement conference. (Id.) Defendant thereafter submitted a statement showing that he had incurred $173.27 in expenses. (Dkt. No. 70.)

         On February 12, 2018, attorney Amir Salar Atrizadeh entered an appearance on Plaintiff's behalf. (Dkt. No. 68.) Plaintiff thereafter filed a declaration in response to the Order to Show Cause, as well as a response to Defendant's motion to dismiss and for summary judgment accompanied by numerous declarations as well as an administrative motion to seal. (Dkt. Nos. 71, 72, 73, 74, 75.) Plaintiff has also since filed an ex parte application to continue the trial date. (Dkt. No. 76.)


         A. February 7, 2018 Order to Show Cause

         Plaintiff's declaration in response to the Court's February 7, 2018 Order to Show Cause attests that she was unable to attend the Settlement Conference because of a complicated surgery which took place two months prior and has limited her mobility. (Dkt. No. 71.) Plaintiff states that she “was under the impression that, if I retain legal counsel to be present at the mandatory settlement conference on my behalf, the settlement conference would proceed without me.” (Id. at ΒΆ 7.) The problem with Plaintiff's argument is that counsel did not enter an appearance on her behalf until after the Settlement Conference and thus he had no authority to represent her at the Settlement Conference. Even if Plaintiff herself was unaware of this fact, counsel should not have been. Further, Judge James's October 23, 2017 order required Plaintiff to personally appear. (Dkt. No. 63.) Finally, Plaintiff's surgery was in early December, even if she has ...

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