Vasquez v. Wyndham LaQuinta ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAMON VASQUEZ, Case No. 1:20-cv-1474-DAD-BAM 12 Plaintiff, ORDER DISCHARGING ORDER TO SHOW 13 CAUSE v. 14 WYNDHAM LAQUINTA; WYNDHAM (Doc. No. 16) 15 HOTEL MANAGEMENT, INC.; LQ MANAGEMENT, LLC; LA QUINTA ORDER SETTING STATUS CONFERENCE 16 FRANCHISING LLC; AND DOES 1 through 100, inclusive, 17 Defendants. 18 On June 18, 2020, Plaintiff Ramon Vasquez (“Plaintiff”) filed this complaint in Fresno 19 Superior Court. (Doc. No. 2.) On October 16, 2020, Defendant LQ Management, Inc., removed 20 the action to this Court. (Id.) Also on October 16, 2020, this matter was set for an Initial 21 Scheduling Conference on January 14, 2021. (Doc. No. 7.) On January 14, 2021, the Court held 22 the Initial Scheduling Conference. Counsel for Defendant LQ Management, Inc., Jack Henning 23 appeared. Plaintiff failed to appear. On January 14, 2021, the Court issued an Order to Show 24 Cause for Plaintiff to explain why sanctions should not be imposed for Plaintiff’s failure to 25 appear at the January 14, 2021, scheduling conference and for Plaintiff’s failure to effectuate 26 service on the remaining named Defendants Wyndham LaQuinta, Wyndham Hotel 27 Management, Inc., and LaQuinta Franchising, In. On January 25, 2021, David M. Trent, 1 counsel for Plaintiff, filed a response to the Court’s Order to Show Cause. (Doc. No. 16.) 2 I. Failure to Appear 3 According to the declaration of Mr. Trent, he called in to the Zoom conference set for 4 the January 14, 2021 scheduling conference by dialing the telephone number 1 (660) 254-5252 5 (the number provided) at 8:59 a.m. (Id. at 4-5.) Counsel then waited “on hold” for the host to 6 start the hearing. (Id.) Counsel then attempted to join the video conference by using the link 7 provided by the Court at approximately 9:20 a.m. (Id.) Counsel provided photographic 8 evidence of his attempt to join the meeting. (Doc. No. 16-1.) 9 II. Failure to Effectuate Service 10 According to Counsel’s declaration and Exhibit 2 of Counsel’s Response, Defendants 11 La Quinta Franchising, LLC and Wyndham Hotel Management, Inc., were served with the state 12 court complaint, summons, and civil cover sheet on January 20, 2021. (Doc. Nos. 16 at 2-3 and 13 16-2.) As to Defendant Wyndham LaQuinta, service has not been completed as there appears to 14 be a dispute as to whether Wyndham LaQuinta is an entity that can be served. (Doc. No. 16 at 15 2-3.) 16 Title 28 U.S.C. § 1448 provides, in relevant part that “in all cases removed from any State 17 court to any district court of the United States in which any one or more of the defendants has 18 not been served with process … such process or service may be completed or new process issued 19 in the same manner as in cases originally filed in such district court.” Any Defendant not served 20 prior to removal, must be served pursuant to Federal Rule of Civil Procedure 4, with federal court 21 process after removal. Vasquez v. N. County Transit Dist., 292 F.3d 1049, FN3 (9th Cir. 2002). 22 Plaintiff failed to serve Defendants Wyndham LaQuinta, La Quinta Franchising, LLC, 23 and Wyndham Hotel Management, Inc., prior to removal. Service of State Court process 24 following removal to federal court is insufficient to effectuate service. Plaintiff must comply with 25 FRCP 4 to effectuate service now that the case has been removed to federal court. 26 III. Order 27 Having considered counsel’s response, the Court will not issue sanctions at this time, 1 HEREBY ORDERED as follows: 2 1. The Court’s Order to Show Cause issued January 14, 2021 (Doc. No. 16.) is 3 DISCHARGED; 4 2. Plaintiff is directed to comply with FRCP 4 for service of the unserved defendants; 5 and 6 3. The parties shall appear at a Status Conference on March 15, 2021 at 9:30 AM in 7 Courtroom 8 (BAM) before Magistrate Judge Barbara A. McAuliffe with each 8 party connecting remotely either via Zoom video conference or Zoom telephone 9 number. The parties shall be provided with the Zoom ID and password by the 10 Courtroom Deputy prior to the conference. The Zoom ID number and password are 11 confidential and are not to be shared. Appropriate court attire required. 12 IT IS SO ORDERED. 13 14 Dated: January 28, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27