Campbell et al v. Apartment Investment and Management Company et al

Response Memorandum in Response to Defendants' 47 Motion to Dismiss Certain Plaintiffs

N.D. Cal.August 14, 2008

COHEN, MILSTEIN, HAUSFELD & TOLL P.L.L.C. ATTORNEYS AT LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Memorandum in Response to Defendants’ Motion to Dismiss Certain Plaintiffs; Case No. 3:07-cv-03640-SC Teresa Demchak, CA Bar No. 123989 Laura L. Ho, CA Bar No. 173179 GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN 300 Lakeside Drive., Suite 1000 Oakland, CA 94612 (510) 763-9800 (telephone) (510) 835-1417 (telefax) tdemchak@gdblegal.com lho@gdblegal.com Joseph M. Sellers Charles E. Tompkins Llezlie L. Green COHEN, MILSTEIN, HAUSFELD & TOLL, PLLC 1100 New York Avenue, N.W. Suite 500, West Tower Washington, DC 20005 (202) 408-4600 (telephone) (202) 408-4699 (telefax) jsellers@cmht.com ctompkins@cmht.com lgreen@cmht.com Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KENNITH CAMPBELL, et al. Plaintiffs, v. APARTMENT INVESTMENT AND MANAGEMENT COMPANY, et al. Defendants. Case No. 3:07-cv-03640 - SC MEMORANDUM IN RESPONSE TO DEFENDANTS’ MOTION TO DISMISS CERTAIN PLAINTIFFS Date: September 5, 2008 Time: 10:00 a.m. Before the Hon. Samuel Conti I. INTRODUCTION Defendants seek the dismissal Plaintiff Patrick Moxley and Plaintiff Damian Zentner’s Case 3:07-cv-03640-SC Document 51 Filed 08/14/2008 Page 1 of 5 COHEN, MILSTEIN, HAUSFELD & TOLL P.L.L.C. ATTORNEYS AT LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Memorandum in Response to Defendants’ Motion to Dismiss Certain Plaintiffs; Case No. 3:07-cv-03640-SC - 2 - claims based upon their failure to provide responses to discovery requests propounded by Defendants. See Docket No. 47 (“Defs’ Mot.”). As Plaintiffs’ counsel have been unable to communicate with Plaintiffs Moxley and Zentner, and therefore have been unable to prepare responses to Defendants’ discovery requests or determine why these plaintiffs have not responded to counsel’s efforts to contact them, see Docket No. 38, counsel’s ability to oppose Defendants’ motion is limited. Nevertheless, the Court has not relieved counsel from their ethical obligation to represent these plaintiffs by responding to Defendants’ motion. Under these circumstances, Plaintiffs’ counsel respectfully requests that, should the Court be inclined to grant Defendants’ motion, it issue either a show cause order or an order dismissing Plaintiff Moxley and Zentner’s claims without prejudice. II. BACKGROUND On February 29, 2008, Plaintiffs’ counsel filed a Motion to Withdraw as Counsel for 11 plaintiffs, including Plaintiffs Patrick Moxley and Damian Zentner. See Docket No. 38. Defendants did not oppose the motion to withdraw. The Court denied the motion, indicating it would not grant a motion to withdraw as counsel without the individual plaintiffs’ written consent. See Docket No. 42. As the motion to withdraw as counsel was predicated on Plaintiffs’ counsel’s inability to communicate with Plaintiffs’ Moxley and Zentner (as well as the nine additional plaintiffs for whom counsel sought to withdraw as counsel), counsel were unable to obtain the signatures from Plaintiffs Moxley and Zentner necessary to re-file a motion to withdraw as their counsel. See Declaration of Llezlie L. Green, (“Green Decl.”), ¶ 2. Nine other plaintiffs subject to that motion were subsequently dismissed due to their failure to complete ADR forms. See Docket No. 43. Case 3:07-cv-03640-SC Document 51 Filed 08/14/2008 Page 2 of 5 COHEN, MILSTEIN, HAUSFELD & TOLL P.L.L.C. ATTORNEYS AT LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Memorandum in Response to Defendants’ Motion to Dismiss Certain Plaintiffs; Case No. 3:07-cv-03640-SC - 3 - III. ARGUMENT Plaintiffs’ counsel indicated in their Motion to Withdraw that, despite repeated efforts, counsel have been unable to communicate with Plaintiffs Moxley and Zentner. See Docket No. 38, at 4. As a result, Plaintiffs Moxley and Zentner have not provided responses to Defendants’ outstanding discovery requests, nor have they sought discovery from the Defendants. See Green Decl., ¶ 3. Put simply, plaintiffs’ failure to communicate with counsel has prevented counsel from actively pursuing their claims against Defendants. Id., ¶ 4. Defendants’ motion requests, in the alternative to the dismissal of Plaintiff Moxley and Plaintiff Zentner’s claims, an order to them to show cause why their claims should not be dismissed. See Defs’ Mot. at 6. Dismissal of a plaintiff’s claim is a “drastic sanction.” Ferdik v. Bozelet, 963 F.2d 1258, 1260 (9th Cir. 1992). Issuance of a show cause order prior to granting such a sanction is more appropriate under these circumstances. While a warning regarding the possibility of dismissal is warranted where courts consider taking sua sponte action, there is no express requirement that the Court warn plaintiffs of the possibility their claims will be dismissed where a motion has been noticed under Fed. R. Civ. P. 41(b). See Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991). Here, however, as Plaintiffs’ counsel have been unable to successfully communicate with the plaintiffs whose claims Defendants seek to dismiss, the affected plaintiffs likely have not received notice their claims are in jeopardy. See Green Decl., ¶ 5. In light of these unique circumstances, Plaintiffs’ counsel respectfully request that, rather than dismissing plaintiffs’ claims, the Court issue an order to show cause to be served upon the last known address of Plaintiffs’ Moxley and Zentner. In the alternative, as Plaintiffs’ counsel cannot assure the Court that Plaintiffs’ Moxley and Zentner have, in fact, received notice of Defendants’ motion, Plaintiffs’ counsel request that any Case 3:07-cv-03640-SC Document 51 Filed 08/14/2008 Page 3 of 5 COHEN, MILSTEIN, HAUSFELD & TOLL P.L.L.C. ATTORNEYS AT LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Memorandum in Response to Defendants’ Motion to Dismiss Certain Plaintiffs; Case No. 3:07-cv-03640-SC - 4 - order dismissing their claims at this time be issued without prejudice. IV. CONCLUSION For the reasons stated herein, Plaintiffs’ counsel respectfully request the Court issue a show cause order, rather than dismissing Plaintiff Moxley and Plaintiff Zentner’s claims at this juncture. Dated: August 14, 2008 COHEN, MILSTEIN, HAUSFELD & TOLL, PLLC By: /s/Llezlie L. Green Attorneys for Plaintiffs Joseph Dominguez, et. al. Case 3:07-cv-03640-SC Document 51 Filed 08/14/2008 Page 4 of 5 COHEN, MILSTEIN, HAUSFELD & TOLL P.L.L.C. ATTORNEYS AT LAW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Memorandum in Response to Defendants’ Motion to Dismiss Certain Plaintiffs; Case No. 3:07-cv-03640-SC - 5 - CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing Motion for Leave to Withdraw as Counsel with the Clerk of the Court using the CM/ECF system which will send notification of such to the following: Chad Allen Stegeman Akin Gump Strauss Hauer & Feld 580 California St. San Francisco, CA 94104 cstegeman@akingump.com John M. Husband Holland & Hart LLP 555 17th Street Suite 3200 Denver, CO 80202 Richard N. Appel Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Avenue NW Suite 1000 Washington, DC 20036 Date: August 14, 2008 /s/Llezlie L. Green ________________ Llezlie L. Green Cohen, Milstein, Hausfeld & Toll, P.L.L.C. 1100 New York Ave, NW, Suite 500 West Tower Washington, DC 20005-3964 Case 3:07-cv-03640-SC Document 51 Filed 08/14/2008 Page 5 of 5