Triumph Furniture Processing-Export Joint Stock Company v. Everest Furniture Company
Filing
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ORDER to SHOW CAUSE Why This Case Should Not be Dismissed for Failure to Prosecute signed by Magistrate Judge Gary S. Austin on 1/17/2014. Show Cause Hearing set for 2/14/2014 at 10:00 AM in Courtroom 10 (GSA) before Magistrate Judge Gary S. Austin. (Martinez, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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TRIUMPH FURNITURE PROCESSINGEXPORT JOINT STOCK, a Vietnam
Corporation,
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Plaintiff,
v.
No. 1:13-cv-1648-AWI-GSA
ORDER TO SHOW CAUSE WHY THIS
CASE SHOULD NOT BE DISMISSSED
FOR FAILURE TO PROSECUTE
EVEREST FURNITURE COMPANY, a
California Corporation,
Defendant.
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This civil action was initially filed in the United States District Court in the Northern
District of California (”Northern District”) on April 17, 2013. (Doc. 1). The complaint alleges
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three causes of action: 1) breach of contract, 2) promissory fraud, and 3) constructive fraud.
Defendant, Everest Furniture Company, did not appear after being served with the complaint.
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Default was entered on June 28, 2013. (Doc. 7). On September 24, 2013, District Court Judge
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Susan Illston issued an Order to Show Cause Why the Case Should Not be Transferred to the
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United States Court in the Eastern District of California. (Doc. 12). Plaintiff’s counsel did not
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file a response and the case was transferred to this Court on October 11, 2013. (Docs. 13 and 14).
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After the transfer, new civil case documents were issued and an initial scheduling
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conference as scheduled for January 16, 2014 at 9:00. Counsel was ordered to attend the
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scheduling conference and to file a scheduling report one week prior to the hearing. (Doc. 15, pg.
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3). No scheduling report was filed. On January 10, 2014, the Court converted the scheduling
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conference into a status conference.
On January 16, 2014, despite the Court’s order, Plaintiff’s counsel did not appear at the
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status conference, nor has Plaintiff’s counsel contacted the Court regarding this matter.
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Accordingly, the Court orders Plaintiff’s counsel to show cause why this case should not be
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dismissed for Plaintiff’s repeated failure to comply with this Court’s orders and for a failure to
prosecute this case.
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Federal Rule of Civil Procedure 16(f) allows for dismissal of a case for failure to appear at
a scheduling conference. See Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987).
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In addition, Rule 110 of this Court’s Local Rules provides that the “failure of counsel or of a
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party to comply … with any order of the Court may be grounds for imposition by the Court of
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any and all sanctions … within the inherent power of the Court.” This Court has the inherent
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power to manage its docket. Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). In
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the exercise of that power, the Court may dismiss an action for a party’s failure to obey court
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orders and to prosecute the case. Id; also see Malone, 833 F.2d at130 (affirming district court’s
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dismissal of action for a party’s failure to comply with court orders); Henderson v. Duncan, 779
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F.2d 1421, 1424 (9th Cir. 1986) (the district court has the inherent power to dismiss a case sua
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sponte for lack of prosecution).
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The Court is required to weigh several factors in determining whether to dismiss an action
for lack of prosecution or failure to obey court orders: (1) the public’s interest in expeditious
resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the
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defendant; (4) the public policy favoring disposition of cases on their merits; and (5) the
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availability of less drastic sanctions. Henderson, 779 F.2d at 1424; Malone, 833 F.2d at 132-133.
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Furthermore, a dismissal for lack of prosecution must be supported by a showing of unreasonable
delay, which creates a presumption of injury to the defense and prejudices the Court’s need to
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manage its docket. Id.
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ORDER
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Plaintiff’s counsel, Jeffrey Benice, is ORDERED to show cause why the action should not
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be dismissed for a failure to prosecute. Plaintiff’s counsel shall personally appear at a hearing on
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February 14, 2014 at 10:00 a.m. in Department 10 of this Court to respond to this Order to Show
Cause. Plaintiff’s counsel is cautioned that a failure to appear at the hearing as ordered will result
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in the dismissal of this action.
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IT IS SO ORDERED.
Dated:
January 17, 2014
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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DEAC_Signature-END:
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