Ashton-Cirillo v. Twitter, Inc.

Background

Sarah Ashton-Cirillo sued Twitter in Colorado state court after third parties allegedly harassed her on Twitter by posting transphobic insults and threats. Twitter removed the case to federal court in Colorado, and that court transferred it to the Northern District of California. Twitter filed a motion to dismiss on April 13, 2023.

The plaintiff’s opposition or statement of non-opposition was due April 27, 2023. The deadline to amend the complaint as a matter of right was May 4, 2023. The plaintiff filed neither an opposition nor an amended complaint.

The court also sent six notices to the plaintiff’s counsel about consenting to proceed before a magistrate judge or requesting reassignment. The courtroom deputy left a voicemail about the missing opposition and the notices. Twitter’s counsel repeatedly contacted the plaintiff’s counsel about these matters and about the motion to dismiss. The plaintiff’s counsel eventually stated that he was no longer representing the plaintiff but did not provide Twitter’s counsel with the plaintiff’s contact information as of May 10, 2023. Twitter’s counsel later learned that the plaintiff’s counsel had been suspended from practicing law for thirty months beginning March 2, 2023.

Court’s analysis

The court explained that its local rules do not allow counsel to withdraw until the court authorizes the withdrawal after written notice to the client and other parties. Until the client obtains new representation, counsel may be required to continue serving the client with court papers. The court found that the plaintiff’s counsel had not complied with these withdrawal requirements. The court also stated that the conduct could be subject to discipline under the local rules.

The court reviewed the standards for possible sanctions. Under Rule 41(b) of the Federal Rules of Civil Procedure, a defendant may seek dismissal when a plaintiff fails to prosecute a case or comply with court rules or orders. The court described the factors used when considering dismissal as a sanction, including the public’s interest in resolving cases promptly, the court’s need to manage its docket, potential prejudice to the defendant, the policy favoring decisions on the merits, and whether less severe measures are available. The court also discussed possible monetary sanctions under Rules 37(d)(3) and 37(b)(2)(C), including recovery of reasonable expenses caused by a failure to act unless the failure was substantially justified or an award would otherwise be unjust.

Order

The court issued an order to show cause and set a hearing for May 25, 2023, at 9:30 a.m. by videoconference. It ordered the plaintiff and the withdrawing counsel to appear. The plaintiff had to file an opposition or statement of non-opposition to Twitter’s motion to dismiss by May 18, 2023, or propose a different schedule if that deadline was insufficient.

The court ordered the plaintiff’s counsel, within two business days, to give Twitter’s counsel the plaintiff’s contact information, serve the order and videoconference information on the plaintiff, and file a statement showing compliance and service. The court warned that failure to appear could result in sanctions, including a monetary award to Twitter for costs caused by counsel’s failure to prosecute the case. It further warned that if the plaintiff did not participate in the litigation, the case could ultimately be dismissed for failure to prosecute, resulting in a judgment in Twitter’s favor. The court did not rule on Twitter’s motion to dismiss in this order.