Judge tosses fraud suit against Dolarian Capital after plaintiff misses deadline

By Sandra Lane | Jun 22, 2018

FRESNO – On June 7, U.S. Magistrate Judge Sheila K. Oberto of the U.S. District Court for the Eastern District of California issued an order granting the defendants’ motion to dismiss with prejudice a case after the plaintiff failed to obtain a legal representative within the required time period after the original counsel withdrew.

Oberto also stated that “A dismissal for lack of prosecution must be supported by a showing of unreasonable delay. (Plaintiff) SEI’s failure to obtain counsel has caused significant delay. It has been more than three months since SEI’s attorneys withdrew, and more than a month since the deadline the court set for SEI to obtain new counsel passed.”

According to the order, plaintiff Societe D’Equipments Internationaux Nigeria LTD (SEI) sued Dolarian Capital Inc. and Ara G. Dolarian over allegations of breach of contract and fraud in October 2015.

The complaint stated that in June 2014, "SEI, a Nigerian corporation, and defendants executed a sales contract for the purchase of military assets and munitions to be used by the Nigerian military in its fight against Boko Haram."

According to SEI’s complaint, it paid $8.6 million to defendants, but they failed to deliver the military assets and munitions.

No additional action was reported in the court’s documents until Feb. 18, when the court entered an order granting a motion to withdraw filed by the current counsel for SEI. In addition, the court directed SEI to retain new counsel within 60 days of the date of the order, or April 25.

"The order also required defendants to file a status report reflecting the current status of the case by no later than March 22. The court cautioned that SEI could not proceed pro se, as it is a corporation, and that its failure to obtain counsel would result in dismissal of the action with prejudice for want of prosecution," the order states.

There was no response from SEI and no new counsel contacted the court to register as SEI’s representative. On April 26, defendants filed a notice of motion and motion to dismiss with prejudice. No opposition has been filed to date.

In granting the dismissal, Oberto said, “Dismissal of claims is particularly appropriate where the court has given a corporation time to retain counsel. 

"Courts in the 9th Circuit have repeatedly held that a corporation’s continued failure to secure counsel justifies dismissal of its claims.”

The judge also said that SEI’s failure to follow the local rules and court-imposed deadlines has thus prevented expeditious resolution of this action, which has been pending since 2015. 

“Because SEI cannot proceed unless it retains counsel, of which it was reminded on several occasions, its failure to do so makes it impossible to move forward with the litigation,” the order states.

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