DOC Transporation Inc. v. S and J Pixley Investments, LLC et al

Filing 19

ORDER TO SHOW CAUSE by Judge Fernando M. Olguin that (1) Plaintiff shall file a proof of service or application for entry of default against FTB no later than 9/14/2017. (2) Plaintiff is admonished that failure file a proof of service or application for entry of default against FTB by the 9/14/2017, deadline will result in the FTB being dismissed without prejudice for lack of prosecution and/or failure to comply with the orders of the court. (3) The Order to Show Cause Re: Dismissal Re: Lack of Prosecution, is hereby continued pending compliance with paragraph one above. (jp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DOC TRANSPORTATION, INC.,
Plaintiff,

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v.

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S AND J PIXLEY INVESTMENTS, LLC,
et al.,

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Defendants.

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Case No. ED CV 17-1176 FMO (DTBx)

ORDER TO SHOW CAUSE

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Plaintiff filed his operative First Amended Complaint (“FAC”) in state court on May 11, 2017,

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which added the Franchise Tax Board (“FTB”) as a defendant. (See Dkt. 1-1, FAC). Defendant

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United States of America removed that action on June 14, 2017. (See Dkt. 1, Notice of Removal).

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By order dated August 1, 2017, plaintiff was ordered to show cause, on or before August 8, 2017,

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why the FTB should not be dismissed for lack of prosecution for failure to complete service of the

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summons and complaint as required by Rule 4(m) of the Federal Rules of Civil Procedure.1 (See

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Dkt. 9, Court’s Order of August 1, 2017). Plaintiff was advised that the court may dismiss the

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action prior to the 90 days required by Rule 4(m) if plaintiff has not diligently prosecuted the action.

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(See id.).

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On August 4, 2017, plaintiff’s counsel responded to the Order to Show Cause stating that

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he had spoken to the FTB’s counsel and that it was his understanding that the FTB would be

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Unless otherwise indicated, all “Rule” references are to the Federal Rules of Civil
Procedure.

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releasing its claims against plaintiff and would thus not be making an appearance in this action.

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(See Dkt. 13, Declaration of Daniel J. Hyun in Response to the Order to Show Cause Re:

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Dismissal Re: Lack of Prosecution at ¶¶ 4-5). Plaintiff requested an extension of time to file an

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entry of default against FTB to allow the parties to negotiate dismissal of the FTB. (See id. at ¶

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6).

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Based on the foregoing, IT IS ORDERED THAT:

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1. Plaintiff shall file a proof of service or application for entry of default against FTB no later

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than September 14, 2017.

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2. Plaintiff is admonished that failure file a proof of service or application for entry of default

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against FTB by the September 14, 2017, deadline will result in the FTB being dismissed without

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prejudice for lack of prosecution and/or failure to comply with the orders of the court. See Fed.

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R. Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 1388 (1962.

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3. The Order to Show Cause Re: Dismissal Re: Lack of Prosecution, is hereby continued

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pending compliance with paragraph one above.

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Dated this 15th day of August, 2017.

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/s/
Fernando M. Olguin
United States District Judge

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