ORDER Directing Plaintiff to Show Cause Why This Case Should Not Be Dismissed and Judgment Entered for Defendants. Show Cause Response due by 6/24/2015. Signed by Magistrate Judge Howard R. Lloyd on 6/10/2015. (hrllc2, COURT STAFF) (Filed on 6/10/2015)
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Page 1 Case5:11-cv-05496-HRL Document68 Filed06/10/15 Page1 of 3
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
United States District Court
Northern District of California
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THINK COMPUTER CORPORATION,
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Case No. 5:11-cv-05496-HRL
Plaintiff,
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v.
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ROBERT VENCHIARUTTI, et al.,
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Defendants.
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ORDER DIRECTING PLAINTIFF TO
SHOW CAUSE WHY THIS CASE
SHOULD NOT BE DISMISSED AND
JUDGMENT ENTERED FOR
DEFENDANTS
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Defendants have filed what the court will deem to be an administrative motion to dismiss
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this suit and enter judgment in their favor. In support, they point out that all of plaintiff’s claims
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were dismissed with leave to amend, but plaintiff did not file an amended complaint or seek an
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extension of time. The deadline for a filing has passed.
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Accordingly, no later than June 24, 2015, plaintiff shall file a response to this order,
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showing cause why this case should not be dismissed and judgment entered for defendants.1
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Aaron Greenspan, the plaintiff’s president and Chief Executive Officer, sent a letter to the
court advising that the corporation’s lawyer, Michael Aschenbrener, had unilaterally stopped
representing plaintiff and closed his practice. Mr. Greenspan urged the court to allow him,
although he is not an attorney, to represent the plaintiff going forward. Specifically, he wanted to
file a post-judgment motion to recover attorney fees from defendants under 42 U.S.C. § 1988.
The purported basis for a fees award would be that this lawsuit was a catalyst for the State of
California to make several amendments to the Money Transmission Act, the very statute that
plaintiff’s suit challenged. Under this theory, plaintiff would be the “prevailing party” not becausePage 2 Case5:11-cv-05496-HRL Document68 Filed06/10/15 Page2 of 3
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SO ORDERED.
Dated: June 10, 2015
________________________
HOWARD R. LLOYD
United States Magistrate Judge
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United States District Court
Northern District of California
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it won the suit, but because the lawsuit reportedly brought about the desired result.
Neither the status of plaintiff’s legal representation nor the question of recovery of fees is
formally before the court at this time, but the court’s thinking is as follows:
(1) If Mr. Greenspan’s representations are correct, it is an appalling breach of professional
responsibilities for plaintiff’s attorney to abandon a client without bothering to seek the
court’s permission to withdraw. Nevertheless, the court does not have the authority to
permit a corporation to represent itself pro se. Rowland v. California Men’s Colony, 506 U.S. 194, 201-02 (1993) (“It has been the law for the better part of two centuries . .
. that a corporation may appear in the federal courts only through licensed counsel”); In
Re Highley, 459 F.2d 554, 555 (9th Cir. 1972) (“A corporation can appear in a court
proceeding only through an attorney at law”).
(2) As the court understands the current state of the law, a motion for fees based on the
catalyst theory would likely be unsuccessful. The United States Supreme Court in
Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human
Resources, 532 U.S. 598, 121 S. Ct. 1835, 149 L.Ed.2d 855 (2001) ruled that, for
purposes of an attorney fee award, a plaintiff is not a prevailing party where it achieves
a desired result because the lawsuit brings about a voluntary change in the defendant’s
conduct. See also Bennett v. Yoshina, 259 F.3d 1097, 1100-01 (9th Cir. 2001) (“There
can be no doubt that the Court’s analysis in Buckhannon applies to statutes other than
the two at issue in that case. Specifically, the provision at issue in this case, the Civil
Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, was cited by the Court
as a ‘nearly identical [fee-shifting] provision[ ]’ to the two at issue in Buckhannon, 532
U.S. at –––– n. 4, 121 S.Ct. at 1839 n. 4, and the Court noted that it has interpreted
Congress’s various fee-shifting provisions consistently.”).
2Page 3 Case5:11-cv-05496-HRL Document68 Filed06/10/15 Page3 of 3
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5:11-cv-05496-HRL Notice has been electronically mailed to:
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Michael Brooks Carroll
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Michael James Aschenbrener
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Peter Keller Southworth
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Ryan Marcroft Ryan.Marcroft@doj.ca.gov, janice.titgen@doj.ca.gov,
marc.leforestier@doj.ca.gov
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carroll_law@sbcglobal.net
mja@aschenbrenerlaw.com, legal@thinkcomputer.com
Peter.southworth@doj.ca.gov
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United States District Court
Northern District of California
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5:11-cv-05496-HRL Courtesy copy of this document sent by U.S. Mail to:
Aaron Greenspan
Think Computer Corporation
1132 Boranda Avenue
Mountain View, CA 94040
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PDF Page 1
PlainSite Cover Page
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Case5:11-cv-05496-HRL Document68 Filed06/10/15 Page1 of 3
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
10
SAN JOSE DIVISION
United States District Court
Northern District of California
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THINK COMPUTER CORPORATION,
12
Case No. 5:11-cv-05496-HRL
Plaintiff,
13
v.
14
ROBERT VENCHIARUTTI, et al.,
15
Defendants.
16
ORDER DIRECTING PLAINTIFF TO
SHOW CAUSE WHY THIS CASE
SHOULD NOT BE DISMISSED AND
JUDGMENT ENTERED FOR
DEFENDANTS
17
18
Defendants have filed what the court will deem to be an administrative motion to dismiss
19
this suit and enter judgment in their favor. In support, they point out that all of plaintiff’s claims
20
were dismissed with leave to amend, but plaintiff did not file an amended complaint or seek an
21
extension of time. The deadline for a filing has passed.
22
Accordingly, no later than June 24, 2015, plaintiff shall file a response to this order,
23
showing cause why this case should not be dismissed and judgment entered for defendants.1
24
1
25
26
27
28
Aaron Greenspan, the plaintiff’s president and Chief Executive Officer, sent a letter to the
court advising that the corporation’s lawyer, Michael Aschenbrener, had unilaterally stopped
representing plaintiff and closed his practice. Mr. Greenspan urged the court to allow him,
although he is not an attorney, to represent the plaintiff going forward. Specifically, he wanted to
file a post-judgment motion to recover attorney fees from defendants under 42 U.S.C. § 1988.
The purported basis for a fees award would be that this lawsuit was a catalyst for the State of
California to make several amendments to the Money Transmission Act, the very statute that
plaintiff’s suit challenged. Under this theory, plaintiff would be the “prevailing party” not because
PDF Page 3
Case5:11-cv-05496-HRL Document68 Filed06/10/15 Page2 of 3
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SO ORDERED.
Dated: June 10, 2015
________________________
HOWARD R. LLOYD
United States Magistrate Judge
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United States District Court
Northern District of California
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it won the suit, but because the lawsuit reportedly brought about the desired result.
Neither the status of plaintiff’s legal representation nor the question of recovery of fees is
formally before the court at this time, but the court’s thinking is as follows:
(1) If Mr. Greenspan’s representations are correct, it is an appalling breach of professional
responsibilities for plaintiff’s attorney to abandon a client without bothering to seek the
court’s permission to withdraw. Nevertheless, the court does not have the authority to
permit a corporation to represent itself pro se. Rowland v. California Men’s Colony,
506 U.S. 194, 201-02 (1993) (“It has been the law for the better part of two centuries . .
. that a corporation may appear in the federal courts only through licensed counsel”); In
Re Highley, 459 F.2d 554, 555 (9th Cir. 1972) (“A corporation can appear in a court
proceeding only through an attorney at law”).
(2) As the court understands the current state of the law, a motion for fees based on the
catalyst theory would likely be unsuccessful. The United States Supreme Court in
Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human
Resources, 532 U.S. 598, 121 S. Ct. 1835, 149 L.Ed.2d 855 (2001) ruled that, for
purposes of an attorney fee award, a plaintiff is not a prevailing party where it achieves
a desired result because the lawsuit brings about a voluntary change in the defendant’s
conduct. See also Bennett v. Yoshina, 259 F.3d 1097, 1100-01 (9th Cir. 2001) (“There
can be no doubt that the Court’s analysis in Buckhannon applies to statutes other than
the two at issue in that case. Specifically, the provision at issue in this case, the Civil
Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, was cited by the Court
as a ‘nearly identical [fee-shifting] provision[ ]’ to the two at issue in Buckhannon, 532
U.S. at –––– n. 4, 121 S.Ct. at 1839 n. 4, and the Court noted that it has interpreted
Congress’s various fee-shifting provisions consistently.”).
2
PDF Page 4
Case5:11-cv-05496-HRL Document68 Filed06/10/15 Page3 of 3
1
5:11-cv-05496-HRL Notice has been electronically mailed to:
2
Michael Brooks Carroll
3
Michael James Aschenbrener
4
Peter Keller Southworth
5
Ryan Marcroft Ryan.Marcroft@doj.ca.gov, janice.titgen@doj.ca.gov,
marc.leforestier@doj.ca.gov
6
carroll_law@sbcglobal.net
mja@aschenbrenerlaw.com, legal@thinkcomputer.com
Peter.southworth@doj.ca.gov
7
8
9
10
United States District Court
Northern District of California
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5:11-cv-05496-HRL Courtesy copy of this document sent by U.S. Mail to:
Aaron Greenspan
Think Computer Corporation
1132 Boranda Avenue
Mountain View, CA 94040
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