Palacios v. Nunez, et al.

Filing 10

ORDER REQUIRING Plaintiff to personally appear and SHOW CAUSE Why this Action Should Not Be Dismissed for Lack of Prosecution, Signed by Magistrate Judge Sandra M. Snyder on 8/10/2009. Plaintiff Must PERSONALLY APPEAR on Friday, August 21, 2009 at 09:30 AM in Courtroom 7 before Magistrate Judge Sandra M. Snyder. Show Cause Response, if any, due August 14, 2009. (Arellano, S.)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This matter was initially set for a Mandatory Scheduling Conference on April 7, 2009 at 9:30 a.m. before the Honorable Gary S. Austin, United States Magistrate Judge, pursuant to the standard Order Setting Mandatory Scheduling Conference, filed January 5, 2009 (Doc. 3). On January 15, 2009, plaintiff filed a Statement of On January 20, 2009, vs. HENRY D. NUNEZ, et al., Defendants. GLORIA PALACIOS, Plaintiff, ) ) ) ) ) ) ) ) ) ) 1:08-cv-01996-AWI-SMS ORDER REQUIRING PLAINTIFF TO PERSONALLY APPEAR AND SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR LACK OF PROSECUTION Date: Time: Ctrm: 8/21/09 9:30 a.m. 7 ~ 6th Floor IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Disqualification as to Judge Austin (Doc. 4).

Judge Austin issued an Order disqualifying himself as the Magistrate Judge assigned to the case, and directing that the case be reassigned to the Honorable Sandra M. Snyder, United States Magistrate Judge, thereby changing the case number to 1:08-cv01996-AWI-SMS (Doc. 5). On January 21, 2009, Judge Snyder issued a 1

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Minute Order resetting the scheduling conference on her docket for April 27, 2009 at 10:00 a.m. (Doc. 6). On April 14, 2009,

plaintiff filed a motion to stay the case or postpone the scheduling conference for 90 days due to a medical emergency outof-state (Doc. 7). On April 20, 2009, Judge Snyder issued a Minute

Order denying plaintiff's motion to stay the case and granting her request to continue the scheduling conference to August 3, 2009 at 10:30 a.m. (Doc. 8), for which plaintiff did not appear or otherwise contact the court. A review of the instant action shows that plaintiff has not diligently prosecuted this case. The court possesses the

discretionary authority to dismiss an action based on plaintiff's failure to prosecute diligently. Fed. R. Civ. P. 41(b); Schwarzer,

Tashima & Wagstaffe, Fed. Civ. Proc. Before Trial ¶ 16:431 (1997). Unreasonable delay by plaintiff is sufficient to justify dismissal, even in the absence of actual prejudice to the defendant (Moore v. Telfon Communications Corp., 589 F.2d 959, 967-68 (9th Cir. 1978)) since a presumption of injury arises from the occurrence of unreasonable delay. Fidelity Philadelphia Trust Co. v. Pioche Plaintiff

Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978).

then has the burden of showing justification for the delay and, in the absence of such showing, the case is properly dismissed for failure to prosecute. Nealey v. Transportation Maritima Mexicana,

S.A., 662 F.2d 1275 (9th Cir. 1980). IT IS HEREBY ORDERED: 1. That this matter is SET for hearing, at which plaintiff

must PERSONALLY APPEAR, on Friday, August 21, 2009 at 9:30 a.m., in Courtroom No. 7 on the Sixth Floor of the United States Courthouse, 2

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2500 Tulare Street, Fresno, CA, 93721, before the Honorable Sandra M. Snyder, United States Magistrate Judge, to show cause why this action should not be dismissed for plaintiff's lack of prosecution. 2. If plaintiff has any reasons why this action should not

be dismissed, they shall be submitted, in advance, by sworn declaration of facts on or before August 14, 2009, to which a supporting memorandum of law may be appended, to include: (A) an explanation of the lack of activity in this case; and, (B) shall list each specific step plaintiff plans to

take to prepare this case for trial. Plaintiff is advised that a failure to comply with and/or respond to this order will result in a recommendation to the District Court Judge that this action be dismissed.

IT IS SO ORDERED. Dated: icido3 August 10, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE

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