United States of America by and for the use of Jersey Architectural Door & Supply, Inc. v. Aeroplate Corp. et al

Filing 61

ORDER WITHDRADING FINDINGS AND RECOMMENDATIONS AND DISCHARGING ORDER TO SHOW CAUSE signed by Magistrate Judge Erica P. Grosjean on 03/18/2020. IT IS ORDERED that the Findings and Recommendations, entered by the Court on March 16, 2020 (ECF No. 56) are WITHDRAWN, and the Order to Show Cause, entered by the Court on February 20, 2020 (ECF No. 52) is DISCHARGED.(Gonzales, V)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JERSEY ARCHITECTURAL DOOR &
SUPPLY, INC.,
Plaintiffs,

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ORDER WITHDRADING FINDINGS AND
RECOMMENDATIONS AND DISCHARGING
ORDER TO SHOW CAUSE

v.

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Case No. 1:13-mc-00038-DAD-EPG

AEROPLATE CORP., et al.,

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Defendants.

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On February 20, 2020, the Court entered its third Order to Show Cause (“OSC”) in this

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case, requiring Plaintiff to file a written response, no later than February 27, 2020, explaining its

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failure to comply with the Court’s February 4, 2020, order requiring the filing of a notice of

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voluntary dismissal, stipulation for dismissal, or joint status report, and indicating whether it

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intends to prosecute this action. (ECF No. 52.) On March 16, 2020, after Plaintiff failed to

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respond to the third OSC, the Court entered Findings and Recommendations recommending that

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imposition of monetary sanctions be considered for Plaintiff’s failure to comply with the Court’s

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third OSC; alternatively, the Court recommended that this case be dismissed for Plaintiff’s

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repeated failure to comply with the Court’s orders and failure to prosecute this case. (ECF No.

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56.)

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On March 17, 2020, Plaintiff filed objections to the Findings and Recommendations (ECF
No. 60), fully executed satisfactions of judgment (ECF Nos. 57, 58), and a request for voluntary
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dismissal (ECF No. 59).
In the objections to the Findings and Recommendations, Plaintiff’s counsel represents

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that, “due to clerical errors the unexecuted, as opposed to the executed version of the

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Acknowledgment, was inadvertently filed with the Court,” and a paralegal who had been newly

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assigned “did not receive notice of this error or the subsequent Order To Show Cause notices

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from the Court which were according [sic] not properly processed or calendared.” (ECF No. 60 at

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3-4.) Plaintiff’s counsel admits that she is “fully responsible for these errors as the attorney in

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charge of this file”; asks that the Court “accept [her] sincere apology for the above-described

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errors that occurred and the miscommunications associated therewith”; again apologizes “for any

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inconvenience associated with these errors and respectfully requests that sanctions not be

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imposed and that this action be fully and finally dismissed.” (Id.)

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As set out in the Findings and Recommendations, Plaintiff has repeatedly failed to comply

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with the Court’s orders and did not provide an adequate explanation for failing to comply with the

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Court’s second OSC. (See ECF Nos. 56, 47.) This history of noncompliance raises some concern

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as to counsel’s explanation for failing to respond to the Court’s third OSC.

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Nonetheless, in light of Plaintiff’s counsel’s apology to the Court, the filing by Plaintiff of

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the request for voluntary dismissal with prejudice, and quick response to the Findings and

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Recommendations, the Court will withdraw its Findings and Recommendations and discharge the

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third OSC.

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IT IS ORDERED that the Findings and Recommendations, entered by the Court on March

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16, 2020 (ECF No. 56) are WITHDRAWN, and the Order to Show Cause, entered by the Court

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on February 20, 2020 (ECF No. 52) is DISCHARGED.
IT IS SO ORDERED.

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Dated:

March 18, 2020

/s/
UNITED STATES MAGISTRATE JUDGE

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