Pinzon v. Jensen et al

Filing 105

ORDER VACATING ORDER TO SHOW CAUSE Hearing and Ordering additional filings, signed by District Judge Anthony W. Ishii on 5/31/2013. (Kusamura, W)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ABRAHAM G. PINZON,

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Plaintiff,
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v.
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RON JENSEN, RON JENSEN
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CONSTRUCTION, PINECREST
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MARKET, DAN VAUGHN, and DOES 1- )
50,
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Defendants.
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____________________________________ )

CIV-F-08-1543 AWI SKO
ORDER VACATING ORDER TO
SHOW CAUSE HEARING AND
ORDERING ADDITIONAL
FILINGS

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Defendant Dan Vaughn was renovating his house. Defendant Ron Jensen was the general

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contractor on the project. In July 2006, Vaughn hired Plaintiff Abraham Pinzon to do tile work

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as part of the renovation. Vaughn paid Pinzon weekly, often taking money from the cash register

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at Defendant Pinecrest Market where Vaughn was the part owner/general manager. On October

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10, 2006, Vaughn fired Pinzon. Pinzon alleges that Vaughn did not pay him his full wages and

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further made threatening/racially charged remarks.

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Pinzon first filed suit in small claims court. The court found for Defendants. Pinzon then

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filed suit in the Eastern District of California, alleging racial discrimination. Defendants Ron

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Jensen and Ron Jensen Construction have filed no answer to the complaint, though Ron Jensen

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did file a notice declining magistrate judge jurisdiction. Doc. 16. Pinzon also made a motion for

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entry of default judgment against Ron Jensen and Ron Jensen Construction under Fed. Rule Civ.

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Proc. 55(b)(2). Doc. 36. Magistrate Judge Austin denied the motion without prejudice, noting

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that Pinzon had to first obtain an entry of default by the clerk’s office under Fed. Rule Civ. Proc.

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55(a). Doc. 38. Since that time, Pinzon has not sought an entry of default. Pinzon is proceeding
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pro se and sought to have counsel appointed by the court. Magistrate Judge Oberto denied

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Pinzon’s motion. Doc. 69. Pinzon sought reconsideration, which was denied. Doc. 75.

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Vaughn and Pinecrest Market made motions for summary judgment. Pinzon filed an

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opposition to Vaughn’s motion but no opposition to Pinecrest Market’s motion. The court found

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the opposition insufficient as it was not backed by evidence and granted him an additional

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opportunity to provide an opposition in light of his pro se status. Doc. 73. Pinzon did not do so,

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and the motions were taken under submission without oral argument. The court ultimately

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granted summary judgment in favor of both Vaughn and Pinecrest Market. Doc. 76.

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The court then required Pinzon to take action with respect to his suit against Ron Jensen

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and Ron Jensen Construction. Pinzon failed to do so and a hearing on dismissal for lack of

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prosecution was scheduled for December 19, 2011. Pinzon appeared at the hearing and the court

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gave him additional time to pursue his case. Pinzon filed a new motion seeking to amend his

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complaint, renewing his request to have legal counsel assigned to him, and seeking

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reconsideration of the summary judgment. Docs. 83, 84, and 85. These orders were denied in

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February and March 2012. Docs. 87 and 88. Another hearing on an order to show cause why the

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case should not be dismissed for lack of prosecution was set for March 4, 2013. Doc. 89.

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Plaintiff again filed a written response. Doc. 91. The court vacated the hearing and listed out

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options on how he could proceed in this case. Doc. 92.

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Pinzon made a premature appeal to the Ninth Circuit seeking review of order granting

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summary judgment to Vaughn and Pinecrest Market. Doc. 95. The Ninth Circuit declined to

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hear the appeal for lack of jurisdiction. Doc. 102. As Pinzon’s claims against Ron Jenson and

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Ron Jensen Construction are pending, final judgment against Vaughn and Pinecrest Market has

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not yet issued. A hearing on order to show cause was set for June 3, 2013. Doc. 101. Pinzon has

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filed a written response. Doc. 103.

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This pattern of order to show cause and written response without any forward progress

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must be broken. The court has granted summary judgment to Vaughn and Pinecrest Market.

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Pinzon wishes to appeal that order, but can not do so until his claims against Ron Jensen and Ron

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Jensen Construction are resolved. To resolve those claims, Pinzon must either (1) seek entry of
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default against Ron Jensen and Ron Jensen Construction with the clerks office in accordance

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with Fed. Rule Civ. Proc. 55(a) or (2) file a notice stating he is dismissing his claims against Ron

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Jensen and Ron Jensen Construction in accordance with Fed. Rule Civ. Proc. 41(a)(1)(A)(i).

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Voluntarily dismissing his claims against Ron Jensen and Ron Jensen Construction would allow

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Pinzon to immediately take his claims against Vaughn and Pinecrest Market to the Ninth Circuit.

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Seeking entry of default would delay that process.

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It is ORDERED:

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1. The June 3, 2013 hearing on dismissal for lack of prosecution is VACATED.

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2. Pinzon is ORDERED to make additional filings to resolve his claims against Ron

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Jensen and Ron Jensen Construction within twenty-one (21) days of the filing of this order. If

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Pinzon fails to make an appropriate filing, this case will be dismissed for failure to prosecute

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without further notice.

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IT IS SO ORDERED.

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Dated:
0m8i78

May 31, 2013
SENIOR DISTRICT JUDGE

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