Hopson v. Ron Simi, Inc. et al

Filing 10

ORDER signed by Magistrate Judge Stanley A. Boone on 11/16/2017 requiring Plaintiff to Show Cause why this action should not be dismissed for failure to comply with Court Order and Rule 4 of the Federal Rules of Civil Procedure and continuing Scheduling Conference to 12/20/2017 at 03:30 PM in Courtroom 9 (SAB) before Magistrate Judge Stanley A. Boone. Show Cause Response due within 5-Days. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 14 15 ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO COMPLY WITH COURT ORDER AND RULE 4 OF THE FEDERAL RULES OF CIVIL PROCEDURE AND CONTINUING SCHEDULING CONFERENCE TO DECEMBER 20, 2017 Plaintiff, 12 13 Case No. 1:17-cv-00879-DAD-SAB CYNTHIA HOPSON, v. RON SIMI, INC., et al. Defendants. 16 FIVE DAY DEADLINE 17 18 19 On July 4, 2017, Plaintiff Cynthia Hopson filed this action alleging violations the 20 Americans with Disabilities Act of 1990 and state law. (ECF No. 1.) On July 5, 2017, the 21 summonses and new case documents issued. (ECF Nos. 3, 4, 5.) The mandatory scheduling 22 conference was set for September 26, 2017. (ECF No. 5.) Pursuant to the order setting the 23 mandatory scheduling conference, Plaintiff was to diligently pursue service of the summons and 24 complaint on the defendants in compliance with Rule 4 of the Federal Rules of Civil Procedure 25 and promptly file proofs of service of the summons and complaint. (Order Setting Mandatory 26 Scheduling Conference at 1.) The parties were also required to file a joint scheduling report 27 “one (1) full week prior to the Scheduling Conference.” (Id. at 2.) 28 Plaintiff did not file notice of service of the summonses and complaint or file a joint 1 1 scheduling conference prior to the scheduling conference as ordered. On September 20, 2017, an 2 order issued requiring Plaintiff to show cause why sanctions should not issue for the failure to 3 comply with the July 5, 2017 order. (ECF No. 7.) On September 21, 2017, Plaintiff filed a 4 request for continuance of the Rule 26 conference to allow Plaintiff to finalize service of process. 5 (ECF No. 8.) 6 On September 21, 2017, the Court discharged the order to show cause and granted the 7 request to continue the scheduling conference. (ECF No. 9.) In discharging the order to show 8 cause, the Court noted that Plaintiff had not responded to the order to show cause. (Id. at 1:209 21.) The order further stated 10 11 12 counsel for Plaintiff is advised that orders are not mere suggestions to which the party may choose to respond. When the Court issues an order requiring an act by a date certain, the party is required to act. Counsel Daniel Joseph Malakauskas is hereby provided with notice that should there be future failures to respond to orders of this Court, monetary sanctions will issue without further notice. 13 (Id. at 1:25-2:2.) The order noted that this would “constitute prior notice for the imposition of future 14 monetary sanctions for failure to comply with orders of this Court.” (Id. at 2:10-12.) 15 Rule 4(m) of the Federal Rules of Civil Procedure provides that 16 If a defendant is not served within 90 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 17 18 19 Plaintiff was ordered to serve the complaint in compliance with Rule 4 and promptly file a proof of 20 service. Plaintiff has not filed proof of service of the summonses in this action. The complaint in 21 this action was filed on July 4, 2017. (ECF No. 1.) More than ninety days have passed and Plaintiff 22 has not demonstrated that the complaint has been served in compliance with Rule 4(m). 23 Further, pursuant to the scheduling order and the September 21, 2017 order, Plaintiff’s joint 24 scheduling report was due on November 14, 2017. The parties have not filed a joint scheduling 25 report, nor has Plaintiff requested a further continuance of the scheduling conference. 26 The Local Rules of the Eastern District of California (“L.R.”) provide that “[f]ailure of 27 counsel or of a party to comply with these Rules or with any order of the Court may be grounds 28 for imposition by the Court of any and all sanctions authorized by statute or Rule or within the 2 1 inherent power of the Court.” L.R. 110. The Court has the inherent power to control its docket 2 and may, in the exercise of that power, impose sanctions where appropriate, including dismissal 3 of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). 4 Based on the foregoing, IT IS HEREBY ORDERED that: 5 1. within five (5) days from the date of entry of this order, Plaintiff shall show cause 6 in writing why this action should not be dismissed for failure to comply with the 7 orders issued in this action and for failure to timely serve the summonses and 8 complaint in compliance with Rule 4(m) of the Federal Rules of Civil Procedure; 2. 9 The scheduling conference set for November 21, 2017 is continued to December 20, 2017, at 3:30 p.m. in Courtroom 9; and 10 3. 11 The parties shall file a joint scheduling report a full seven (7) days prior to the scheduling conference. 12 13 14 IT IS SO ORDERED. 15 Dated: November 16, 2017 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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