Vasquez v. Wyndham LaQuinta

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

RAMON VASQUEZ, Case No. 1:20-cv-1474-DAD-BAM

Plaintiff, ORDER DISCHARGING ORDER TO SHOW CAUSE v.

WYNDHAM LAQUINTA; WYNDHAM (Doc. No. 16)

HOTEL MANAGEMENT, INC.; LQ

MANAGEMENT, LLC; LA QUINTA ORDER SETTING STATUS CONFERENCE FRANCHISING LLC; AND DOES 1 through

100, inclusive,

Defendants.

On June 18, 2020, Plaintiff Ramon Vasquez (“Plaintiff”) filed this complaint in Fresno Superior Court. (Doc. No. 2.) On October 16, 2020, Defendant LQ Management, Inc., removed the action to this Court. (Id.) Also on October 16, 2020, this matter was set for an Initial Scheduling Conference on January 14, 2021. (Doc. No. 7.) On January 14, 2021, the Court held the Initial Scheduling Conference. Counsel for Defendant LQ Management, Inc., Jack Henning appeared. Plaintiff failed to appear. On January 14, 2021, the Court issued an Order to Show Cause for Plaintiff to explain why sanctions should not be imposed for Plaintiff’s failure to appear at the January 14, 2021, scheduling conference and for Plaintiff’s failure to effectuate service on the remaining named Defendants Wyndham LaQuinta, Wyndham Hotel Management, Inc., and LaQuinta Franchising, In. On January 25, 2021, David M. Trent, counsel for Plaintiff, filed a response to the Court’s Order to Show Cause. (Doc. No. 16.) I. Failure to Appear

According to the declaration of Mr. Trent, he called in to the Zoom conference set for the January 14, 2021 scheduling conference by dialing the telephone number 1 (660) 254-5252 (the number provided) at 8:59 a.m. (Id. at 4-5.) Counsel then waited “on hold” for the host to start the hearing. (Id.) Counsel then attempted to join the video conference by using the link provided by the Court at approximately 9:20 a.m. (Id.) Counsel provided photographic evidence of his attempt to join the meeting. (Doc. No. 16-1.)

II. Failure to Effectuate Service

According to Counsel’s declaration and Exhibit 2 of Counsel’s Response, Defendants La Quinta Franchising, LLC and Wyndham Hotel Management, Inc., were served with the state court complaint, summons, and civil cover sheet on January 20, 2021. (Doc. Nos. 16 at 2-3 and 16-2.) As to Defendant Wyndham LaQuinta, service has not been completed as there appears to be a dispute as to whether Wyndham LaQuinta is an entity that can be served. (Doc. No. 16 at 2-3.)

Title 28 U.S.C. § 1448 provides, in relevant part that “in all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process … such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.” Any Defendant not served prior to removal, must be served pursuant to Federal Rule of Civil Procedure 4, with federal court process after removal. Vasquez v. N. County Transit Dist., 292 F.3d 1049, FN3 (9th Cir. 2002). Plaintiff failed to serve Defendants Wyndham LaQuinta, La Quinta Franchising, LLC, and Wyndham Hotel Management, Inc., prior to removal. Service of State Court process following removal to federal court is insufficient to effectuate service. Plaintiff must comply with FRCP 4 to effectuate service now that the case has been removed to federal court.

III. Order

Having considered counsel’s response, the Court will not issue sanctions at this time, HEREBY ORDERED as follows:

1. The Court’s Order to Show Cause issued January 14, 2021 (Doc. No. 16.) is DISCHARGED;

2. Plaintiff is directed to comply with FRCP 4 for service of the unserved defendants; and

3. The parties shall appear at a Status Conference on March 15, 2021 at 9:30 AM in Courtroom 8 (BAM) before Magistrate Judge Barbara A. McAuliffe with each party connecting remotely either via Zoom video conference or Zoom telephone number. The parties shall be provided with the Zoom ID and password by the Courtroom Deputy prior to the conference. The Zoom ID number and password are confidential and are not to be shared. Appropriate court attire required.

IT IS SO ORDERED.

Dated: January 28, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE