Facts
- The Court granted Caldarelli Hejmanowski Page & Leer LLP’s motion to withdraw as counsel for Defendant Back of the House LLC on September 19, 2024 [lines="13-14"].
- The Defendant was given a deadline of November 18, 2024, to obtain new counsel and file a notice of appearance [lines="17-18"].
- Defendant failed to file a timely notice of appearance [lines="21"].
- The Court warned that failure to comply with obtaining new counsel could result in striking the answer and entering default judgment against the Defendant [lines="22-22"].
- Corporations must appear in court through an attorney, and failure to comply could lead to the Court exercising its powers to strike the answer and enter default judgment [lines="23-28"].
Issues
- Whether the Court should strike the Defendant's answer and enter default judgment for failure to obtain new counsel by the set deadline [lines="49-53"].
- Whether the Defendant must respond to the pending motion for summary judgment or seek administrative relief in light of the failure to obtain counsel [lines="60-61"].
Holdings
- The Court orders the Defendant to show cause by November 29, 2024, why its answer should not be stricken and default judgment entered for failing to obtain new counsel [lines="48-55"].
- If the Defendant fails to oppose the motion for summary judgment or seek administrative relief timely, the motion may be granted as unopposed, resulting in judgment against the Defendant [lines="66-75"].
OPINION
Case Information
*1 Case 4:22-cv-05197-KAW Document 77 Filed 11/19/24 Page 1 of 2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA NOB HILL CATERING, INC., Case No. 4:22-cv-05197-KAW Plaintiff, ORDER TO SHOW CAUSE v. Re: Dkt. No. 74 BACK OF THE HOUSE LLC,
Defendant.
On September 19, 2024, the Court granted the law firm of Caldarelli Hejmanowski Page & Leer LLP’s motion to withdraw as counsel for Defendant Back of the House, LLC. (9/19/24 Order, Dkt. No. 74.) Defendant was given until November 18, 2024, to obtain new counsel and have counsel file a notice of appearance. Id. at 4. A notice of appearance was not timely filed. In granting the withdrawal, the Court explicitly advised Defendant “that the failure to obtain new counsel or comply with court orders may result in its answer being stricken and a default judgment being entered against it.” (9/19/24 Order at 4.) Indeed, corporations may only appear in court through an attorney. See Rowland v. Cal. Men's Colony, 506 U.S. 194, 201-02 (1993). Therefore, when a corporation fails to obtain counsel despite being ordered to do so, the Court may strike the answer and enter default against it. See United States v. High Country Broad. Co., 3 F.3d 1244, 1245 (9th Cir. 1993) (“perfectly appropriate” for district court to strike answer and enter default judgment against corporation when it failed to retain counsel); TeleVideo Sys., Inc. v. Heidenthal , 826 F.2d 915, 916 (9th Cir. 1987) (determining that striking an answer and entering default judgment are within a court’s inherent powers); see also Coastal Env't Rts. Found. v. Aztec Perlite Co., Inc. , No. 24-cv-385-RSH-SBC, 2024 WL 4520350, at *3 (S.D. Cal. Oct. 16, 2024) (struck answer and entered default sua sponte under court’s inherent powers).
*2 Case 4:22-cv-05197-KAW Document 77 Filed 11/19/24 Page 2 of 2 Accordingly, by November 29, 2024 , Defendant is ordered to show cause why its Answer (Dkt. No. 29) should not be stricken sua sponte and default entered against it for failure to obtain new counsel by the November 18, 2024 deadline. By November 29, 2024 , in addition to responding to this order to show cause, Defendant’s new counsel must also file a notice of appearance and either respond to the pending motion for summary judgment or file a motion for administrative relief from the November 29, 2024 deadline.
Defendant is advised that the failure to timely respond to this order to show cause may result in the Court striking its Answer sua sponte and directing the Clerk of Court to enter default against it under Federal Rule of Civil Procedure 55(a). Defendant is separately advised that the failure to timely oppose the motion for summary judgment or file a motion for administrative relief will result in the granting of the motion for summary judgment as unopposed and judgment being entered against Defendant accordingly. ( See Judge Westmore’s General Standing Order ¶ 22 (“The failure of the opposing party to file a memorandum of points and authorities in opposition to any motion shall constitute consent to the granting of the motion.”).) Finally, former defense counsel is ordered to immediately serve this order on Defendant and file a certificate of service. IT IS SO ORDERED. Dated: November 19, 2024
__________________________________ KANDIS A. WESTMORE United States Magistrate Judge
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