Johnson v. Gennaro's Limited Liability Company

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SCOTT JOHNSON, Case No. 21-cv-08102-SVK

8 Plaintiff, ORDER ON PENDING MOTIONS AND 9 v. STIPULATIONS

10 GENNARO'S LIMITED LIABILITY COMPANY, et al., 11 Defendants. 12 13 This is an action brought by Plaintiff Scott Johnson under the Americans with Disabilities 14 Act (“ADA”) and California’s Unruh Civil Rights Act against Defendants Gennaro’s Limited 15 Liability Company (“Gennaro’s”) and Ganeshkrupa 86 Corporation (“Ganeshkrupa”). Gennaro’s 16 is the property owner/landlord and Ganeshkrupa is the tenant of the property in dispute, located at 17 940 Willow St., San Jose, California (the “Property”). Dkt. 1 (Complaint) ¶¶ 2-3. 18 Now pending before the Court are the following motions and stipulations: 19 • Dkt 19: A motion for judgment on the pleadings brought by both Defendants on 20 the ground that the allegations in this action are essentially identical to those in an 21 earlier-filed action involving the same property, Block v. Gennaro’s Limited 22 Liability Company et al., Northern District of California Case No. 5:21-cv-00192- 23 VDK (the “Block Action”).1 24 • Dkt. 24 and 36: The motion to withdraw and amended motion to withdraw filed 25 by Stephan A. Barber and JRG Attorneys at Law, attorneys for both Defendants. 26

27 1 On February 16, 2022, Judge DeMarchi denied Defendants’ motion to consolidate the Block 1 • Dkt. 35: A consent order for substitution of attorney Richard M. Williams of Gray 2 Duffy, LLP as counsel for Defendant Ganeshkrupa. 3 • Dkt. 42: A proposed consent decree regarding Plaintiff’s claims for injunctive 4 relief. 5 • Dkt. 43: A stipulation to forego the joint site inspection in light of Defendants’ 6 agreement to remediate the Property. 7 All Parties have consented to the jurisdiction of a magistrate judge. Dkt. 7, 11. The Court 8 deems these matters suitable for determination without oral argument. Civ. L.R. 7-1(b). Having 9 considered the applicable law and the record in this case and the Block Action, and good cause 10 appearing, the Court ORDERS as follows: 11 Attorney Withdrawal and Substitution: Defendants have filed parallel motions to 12 withdraw and a substitution of attorney in this case and the Block Action. The Court finds Judge 13 DeMarchi’s orders on these issues in the Block Action thorough and well-reasoned and therefore 14 adopts her reasoning here. Accordingly: 15 (1) The Court GRANTS the motion of Richard M. Williams of Gray Duffy, LLP to 16 substitute in as counsel of record for Ganeshkrupa, in place of Stephan A. Barber (Dkt. 17 35). The court will sign and enter the consent order at Dkt. 35. All counsel appearing 18 on behalf of Ganeshkrupa are to file notices of appearance in this case no later than 19 March 16, 2022. 20 (2) In light of the substitution of counsel for Ganeshkrupa, the Court GRANTS the 21 amended motion of Stephan A. Barber and JRG Attorneys at Law to withdraw as 22 counsel for Ganeshkrupa (Dkt. 36). 23 (3) The Court CONDITIONALLY GRANTS the amended motion of Stephan A. Barber 24 and JRG Attorneys at Law to withdraw as counsel for Gennaro’s (Dkt. 36), for the 25 reasons set forth in Judge DeMarchi’s order at Dkt. 70 in the Block Action and on 26 similar conditions. Specifically, in view of counsel’s explanation regarding the nature 27 of the conflict of interest between the Defendants, and given the minimal prejudice to 1 administration of justice would be served by conditionally permitting counsel to 2 withdraw as counsel of record for Gennaro’s as follows: 3 a. The motion to withdraw is granted subject to the condition that Mr. Barber and 4 JRG Attorneys at Law shall continue to accept service of papers for the purpose 5 of forwarding them to Gennaro’s until Gennaro’s obtains substitute counsel or 6 until the Court orders otherwise. Civil L.R. 11-5(b). 7 b. Gennaro’s is advised that it may not appear pro se or through its corporate 8 officers, but must retain new counsel forthwith to represent it in this lawsuit. 9 See Civ. L.R. 3-9(b) (“A corporation, unincorporated association, partnership or 10 other such entity may appear only through a member of the bar of this Court.”); 11 see also Rowland v. California Men’s Colony, 506 U.S. 194, 201-02 (1993) (“It 12 has been the law for the better part of two centuries . . . that a corporation may 13 appear in the federal courts only through licensed counsel.”); In re Highley, 459 14 F.2d 554, 555 (9th Cir.1972) (“A corporation can appear in a court proceeding 15 only through an attorney at law.”). 16 c. Gennaro’s is further advised that it retains all of the obligations of a litigant, 17 and its failure to obtain an attorney may lead to an order striking its pleadings 18 or entry of its default. See United States v. High Country Broad. Co, Inc., 3 19 F.3d 1244, 1245 (9th Cir. 1993) (per curiam); see also Adobe Sys. Inc. v. 20 Software Tech., No. 5:14-cv- 02140-RMW, 2015 WL 6956632 (N.D. Cal. Nov. 21 10, 2015). 22 d. By March 16, 2022, Mr. Barber and JRG Attorneys at Law shall serve a copy 23 of this order on Gennaro’s and file a proof of service with the Court. Counsel 24 shall specifically advise Gennaro’s that it is prohibited from representing itself 25 in federal court, and that if Gennaro’s fails to obtain substitute counsel, the 26 Court may enter default judgment against it. 27 e. Gennaro’s must obtain new counsel who must file a notice of substitution by 1 is required. 2 f. IfGennaro’s does not obtain new counsel by March 25, 2022 Mr. Barber shall 3 file a declaration that identifies the last known address of Gennaro’s and 4 certifies that he has complied with this order. 5 g. Upon the filing of a notice of substitution of counsel or receipt of Mr. Barber’s 6 declaration, the Court will order further proceedings as necessary. 7 (4) The original motion to withdraw filed by Stephan A. Barber and JRG Attorneys at Law 8 (Dkt. 24) is TERMINATED AS MOOT in light of the foregoing rulings on the 9 amended motion to withdraw (Dkt. 36). 10 Stipulations re Consent Decree and Joint Site Inspection: The recently-filed proposed 11 consent decree (Dkt. 42) and stipulation to forego the joint site inspection (Dkt. 43) are ambiguous 12 || because they purport to concern both “Defendants” and/or all “Parties” but are signed only on 5 13 || behalf of a singular, unidentified “Defendant.” These filings are TERMINATED WITHOUT 14 PREJUDICE. No later than March 16, 2022, the Parties are to re-file them with clarification as 3 15 to which Defendant(s) are parties to and covered by the proposed relief. If Gennaro’s is not 16 || covered by these stipulations, by the same date Plaintiff must file a status report regarding his 3 17 claims against Gennaro’s. 18 Motion for Judgment on the Pleadings: If Defendants intend to pursue the motion for 19 || judgment on the pleadings (Dkt. 19), by April 4, 2022 they must file an amended motion that 20 addresses recent developments, including Judge DeMarchi’s denial of Defendants’ request to 21 consolidate the Block Action with this case. Failure to file an amended motion by the deadline 22 || will result in termination or denial of the motion for judgment on the pleadings. 23 SO ORDERED. 24 Dated: March 9, 2022 25 26 Seam veut 7 SUSAN VAN KEULEN United States Magistrate Judge 28