Roberts et al v. UBS AG et al

Filing 48

ORDER to SHOW CAUSE why Plaintiffs' case should not be recommended for dismissal for failure to prepare a joint scheduling report and failure to pursue service of defendants. The Scheduling Conference set for May 30, 2013, is VACATED; and by no later than June 4, 2013, Plaintiffs shall SHOW CAUSE as to why their case should not be recommended for dismissal for: failure to meet and confer with UBS and prepare a Joint Scheduling Report; and failure to pursue service of all named Defendants. Plaintiffs shall provide a status of service regarding all named Defendants. Order signed by Magistrate Judge Sheila K. Oberto on 5/28/2013. (Timken, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NADIA ROBERTS, et al.,
Plaintiff,

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CASE NO. 1:12-cv-00724-LJO-SKO
ORDER TO SHOW CAUSE WHY
PLAINTIFFS' CASE SHOULD NOT BE
RECOMMENDED FOR DISMISSAL
FOR FAILURE TO PREPARE A JOINT
SCHEDULING REPORT AND
FAILURE TO PURSUE SERVICE OF
DEFENDANTS

v.

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UBS AG, et al.,
Defendants.

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ORDER VACATING SCHEDULING
CONFERENCE

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_________________________________/

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I. INTRODUCTION

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On March 12, 2013, the Court issued an order requiring Plaintiffs Nadia Roberts, et al.

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("Plaintiffs") to file a statement regarding the status of service of each Defendant named in the

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Second Amended Complaint. (Doc. 36.) The Court noted that only one executed proof of

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service had been filed. (Doc. 36.)

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On March 14, 2013, Plaintiffs filed a status report indicating that "Plaintiffs have

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continued their efforts to locate the individuals and also to serve the corporate entities and/or

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partnerships [who had not been served]. Plaintiffs expect to have the Bermuda entities served

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within the next thirty days and the Swiss entities served within 30 days subject to Hague

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Convention Rules." (Doc. 41, 3:4-9.) More than thirty (30) days have passed since Plaintiffs

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filed their status update, and no additional executed proofs of service have been filed.

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Additionally, on May 23, 2013, Defendant UBS AG ("UBS") filed a Scheduling Report

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indicating that Plaintiffs failed to respond to UBS' request to meet and confer and prepare a

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Joint Scheduling Report. (Doc. 47, 1:21-25.)

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Accordingly, for the reasons set forth below, Plaintiffs are ORDERED TO SHOW

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CAUSE why their case should not be recommended for dismissal for failure to pursue service of

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Defendants and failure to prepare a joint scheduling report. Further, the scheduling conference

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set for May 30, 2013, is VACATED.
II.

DISCUSSION

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"District courts have inherent power to control their dockets and may impose sanctions,

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including dismissal, in the exercise of that discretion." Hernandez v. City of El Monte, 138 F.3d

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393, 398 (9th Cir. 1998) (emphasis omitted) (holding that court may dismiss an action that

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abuses the judicial process using inherent powers to control dockets); see also Frost v. Perry,

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919 F. Supp. 1459 (D. Nev. 1996) (untimely motion stricken by court using inherent powers to

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control its own docket). Rule 110 of the Local Rules of the United States District Court, Eastern

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District of California, provides that the "[f]ailure of counsel or of a party to comply with these

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Rules or with any order of the Court may be grounds for imposition by the Court of any and all

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sanctions authorized by statute or Rule or within the inherent power of the Court."

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On May 4, 2012, the Court issued an Order Setting Mandatory Scheduling Conference

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that sets forth, in pertinent part, that a "Joint Scheduling Report, carefully prepared and

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executed by all counsel/pro se parties, shall be electronically filed in CM/ECF, one (1) full week

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prior to the Scheduling Conference . . ." (Doc. 10, 2:21-23 (emphasis added).) The Court's

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order requires all parties to meet and confer in preparation for the mandatory scheduling

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conference, and states that if the parties "fail to comply with the directions as set forth above,"

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including the preparation of a Joint Scheduling Report, then "judgment of dismissal, default, or

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other appropriate judgment may be entered, including sanctions and contempt of court." (Doc.

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10, 6:8-10, 8:17-21 (emphasis omitted).)

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A scheduling conference was set for May 30, 2013, (Doc. 42); as such, the parties were

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required to meet and confer and file a Joint Scheduling report by no later than May 23, 2013.

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(See Doc. 10, 2:21-23, 6:8-10.)

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indicating that Plaintiffs failed to respond to UBS' request to meet and confer and prepare a

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Joint Scheduling Report. (Doc. 47, 1:23-24.)

On that date, UBS filed a unilateral Scheduling Report,

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Due to Plaintiffs' failure to timely meet and confer with UBS to prepare a Joint

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Scheduling Report as ordered by the Court, the May 30, 2013, scheduling conference is

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VACATED. Further, Plaintiffs are ORDERED TO SHOW CAUSE as to why their case should

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not be recommended for dismissal for failure to comply with the Court's May 4, 2012, order to

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meet and confer and participate in the preparation of a Joint Scheduling Report. (Doc. 10.)

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Further, Rule 4(m) of the Federal Rules of Civil Procedure require that "[i]f a defendant

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is not served within 120 days after the complaint is filed, the court – on motion or on its own

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after notice to the plaintiff – must dismiss the action without prejudice against that defendant or

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order that service be made within a specified time." Fed. R. Civ. P. 4(m). More than 120 days

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have passed since Plaintiffs' complaint was originally filed on May 3, 2012. (Doc. 2.) Plaintiffs

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have failed to submit proofs of service for numerous Defendants, despite representing to the

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Court on March 14, 2013, that service would be executed within thirty (30) days from that time.

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Accordingly, Plaintiffs are ORDERED TO SHOW CAUSE as to why their case should not be

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recommended for dismissal for failure to pursue service of Defendants. Further, Plaintiffs

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SHALL provide a status of service regarding all named Defendants.
III.

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CONCLUSION AND ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Scheduling Conference set for May 30, 2013, is VACATED; and

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2.

By no later than June 4, 2013, Plaintiffs SHOW CAUSE as to why their case

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should not be recommended for dismissal for:

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a.

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Failure to meet and confer with UBS and prepare a Joint Scheduling
Report; and

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b.

Failure to pursue service of all named Defendants.

Plaintiffs shall

provide a status of service regarding all named Defendants.

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IT IS SO ORDERED.
Dated:

May 28, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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