G & G Closed Circuit Events, LLC v. Parker ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 G & G CLOSED CIRCUIT EVENTS, Case No.: 20-CV-1017 TWR (MDD) LLC, 12 ORDER: (1) TO SHOW CAUSE Plaintiff/Counter-Defendant, 13 WHY THIRD-PARTY COMPLAINT v. SHOULD NOT BE DISMISSED, 14 (2) APPROVING JOINT TIMOTHY PARKER and DIEGO & 15 STIPULATION TO STAY CASE DANTE, LLC, d/b/a Chula Vista Brewery, WHILE ISSUE AFFECTING 16 Defendants/Counter-Claimants. OUTCOME IS ON APPEAL, 17 (3) STAYING CASE UNTIL THE ___________________________________ NINTH CIRCUIT ISSUES A 18 TIMOTHY PARKER and DIEGO & DECISION ON ANY OF THE 19 DANTE BREWERY, LLC, RELEVANT APPEALS, AND (4) VACATING EARLY NEUTRAL 20 Third-Party Plaintiffs, EVALUATION AND CASE 21 v. MANAGEMENT CONFERENCE 22 LAW OFFICE OF THOMAS P. RILEY, (ECF Nos. 9, 25) 23 P.C., and THOMAS P. RILEY, Third-Party Defendants. 24 25 26 27 Presently before the Court the Joint Stipulation to Stay Case While Issue Affecting 28 Outcome Is on Appeal (“Joint Stip.,” ECF No. 25) filed by Plaintiff and Counter-Defendant 1 G & G Closed Circuit Events, LLC and Defendants, Counter-Claimants, and Third-Party 2 Plaintiffs Timothy Parker and Diego & Dante, LLC, d/b/a Chula Vista Brewery, the only 3 parties to have appeared in this action. 4 ORDER TO SHOW CAUSE 5 As an initial matter, the Court notes that Defendants filed a Third-Party Complaint 6 and Demand for Jury Trial against Third-Party Defendants the Law Office of Thomas P. 7 Riley, P.C. and Thomas P. Riley on August 13, 2020. (See ECF No. 9.) As of the date of 8 this Order—over a year later—Defendants have failed to file proof of service. (See 9 generally Docket.) 10 Rule 4 of the Federal Rules of Civil Procedure provides: 11 [i]f a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the 12 action without prejudice against that defendant or order that service be made 13 within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 14 15 Fed. R. Civ. P. 4(m); see also S.D. Cal. CivLR 4.1(b) (authorizing the Court to order 16 Plaintiff to show cause 100 days following the filing of a complaint when proof of service 17 has not been filed). “In the absence of service of process (or waiver of service by the 18 defendant) . . . a court ordinarily may not exercise power over a party the complaint names 19 as a defendant.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 20 (1999); see Crowley v. Bannister, 734 F.3d 967, 974–75 (9th Cir. 2013) (“A federal court 21 is without personal jurisdiction over a defendant unless the defendant has been served in 22 accordance with Fed. R. Civ. P. 4.”) (citations omitted). Further, “[a]ctions or proceedings 23 [that] have been pending in this court for more than six months, without any proceeding or 24 discovery having been taken therein during such period, may, after notice, be dismissed by 25 the Court for want of prosecution.” S.D. Cal. CivLR 41.1(a); see also Fed. R. Civ. P. 41(b) 26 (“If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant 27 may move to dismiss the action or any claim against it.”); Link v. Wabash R.R. Co., 370 28 U.S. 626, 633 (1962) (“[A] District Court may dismiss a complaint for failure to prosecute 1 even without affording notice of its intention to do so or providing an adversary hearing 2 before acting.”). 3 Because Defendants have failed to file proof of service as to Third-Party Defendants 4 for over a year, the Court ORDERS Defendants to SHOW CAUSE why their Third-Party 5 Complaint should not be dismissed for failure to effect service pursuant to Rule 4(m) and 6 Civil Local Rule 4.1(b) and for failure to prosecute pursuant to Federal Rule of Civil 7 Procedure 41(b) and Civil Local Rule 41.1(a). Defendants SHALL FILE a response to 8 this Order, not to exceed ten (10) pages, within seven (7) days of the electronic docketing 9 of this Order. Should Defendants file a notice of voluntary dismissal of their Third-Party 10 Complaint pursuant to Federal Rule of Civil Procedure 41(a) on or before that date, no 11 further response to this Order shall be required. If Defendants fail adequately to respond 12 to this Order within the time provided, the Court will enter a final order of dismissal 13 without prejudice for failure to effect service pursuant to Rule 4(m) and Civil Local Rule 14 4.1(b); failure to prosecute pursuant Rule 41(b) and Civil Local Rule 41.1(a); and failure 15 to comply with the Federal Rules of Civil Procedure, Civil Local Rules, and this Order 16 pursuant to Civil Local Rule 83.1(a). 17 JOINT STIPULATION 18 Plaintiff has filed the following appeals, all of which address “whether receipt and 19 publishing of television programming via internet streaming video violates Title 47 U.S.C. 20 Section 553 and/or 605”: G & G Closed Circuit Events, LLC v. Liu, 2:19-CV-7896-WDK- 21 JC (C.D. Cal. appealed Sept. 21, 2021); G & G Closed Circuit Events, LLC v. Reto, No. 22 2:19-CV-7915-WDK-JC (C.D. Cal. appealed Sept. 21, 2021); G & G Closed Circuit 23 Events, LLC v. Snukal, No. 21-55488 (9th Cir. filed May 13, 2021) (the “Relevant 24 Appeals”). (See Joint Stip. ¶¶ 3–5.) Defendants intend to assert this same issue as a defense 25 in this action. (See id. ¶ 6.) The Parties therefore have stipulated to stay this matter until 26 the Ninth Circuit issues a ruling in any of the Relevant Appeals. (See id. at 1.) 27 Good cause appearing, the Court APPROVES the Joint Stipulation and STAYS this 28 action in all respects except as to Defendants’ response to the instant Order to Show Cause, 1 || see supra page 3, pending the Ninth Circuit’s decision in Liu, Reto, and/or Snukal. In light 2 ||of the stay, the Court VACATES the Early Neutral Evaluation and Case Management 3 || Conference set before Magistrate Judge Mitchell D. Dembin for October 13, 2021, and all 4 || related deadlines. (See ECF No. 24.) The Parties SHALL FILE a joint status report within 5 || fourteen (14) days of the Ninth Circuit issuing a decision in any of the Relevant Appeals. 6 IT IS SO ORDERED. 7 8 || Dated: September 27, 2021 —_—_— [5 1S bre 10 Honorable Todd W. Robinson United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28