Atterbery v. Yukon Zak LLC et al
ORDER DISCHARGING Order to Show Cause 8 and REQUIRING Filing of Proofs of Service or Report Within Seven Days, signed by Magistrate Judge Christopher D. Baker on 11/17/2022. (Hall, S)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
YUKON ZAK LLC, et al.,
Case No. 1:22-cv-01059-JLT-CDB
ORDER DISCHARGING ORDER TO
SHOW CAUSE AND REQUIRING FILING
OF PROOFS OF SERVICE OR REPORT
WITHIN SEVEN DAYS
(ECF No. 8)
Plaintiff commenced this action with the filing of a complaint on August 19, 2022. (ECF
No. 1.) On August 23, 2022, the Clerk of Court issued a summons, and the Court entered an Order
that, among other things, directed Plaintiff to “diligently pursue service of summons and complaint”
and “promptly file proofs of service.” (ECF Nos. 4 & 6 at p. 1). As of the date of this Order –
some three months later – Plaintiff has not filed proofs of service for the summons and complaint.
On November 8, 2022, Plaintiff was ordered to show cause in writing within three days why
she should not be sanctioned for failing to prosecute this action. (ECF No. 8.) Eight days later, on
November 16, 2022, Plaintiff’s counsel filed a declaration in which he attested that the failure to
prosecute was due in part to an oversight related to the file transfer in his law firm. Plaintiff’s
counsel further attested that at the time the Court issued its order to show cause, he was out of the
office due to the birth of his child. Plaintiff’s counsel declares that upon return to the office, he
discovered the existence of the order to show cause and immediately sent out for service the
summons and complaint. (ECF No. 9).
To determine whether neglect is excusable, a court must consider four factors: “(1) the
danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the
proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” In re
Veritas Software Corp. Sec. Litig., 496 F.3d 962, 973 (9th Cir. 2007).
Based on his declaration, the Court understands Plaintiff’s counsel was not monitoring his
law firm’s email account between the date the Court docketed the order to show cause (November
8, 2022) and the date he returned to the office following the birth of his child (November 16, 2022).
Whether or not Plaintiff’s counsel was able to monitor his law firm’s email account, the Court notes
that the website of Plaintiff’s retained law firm reflects that counsel has several colleagues that
should have been available to monitor filings made in counsel’s cases during his absence.
Plaintiff’s counsel is reminded that he is obligated to exercise reasonable diligence in
representing his client and avoid undue delay in pursuing this action under Rule 1.3 of the California
Rules of Professional Conduct.
The Court has considered the Veritas factors in the light of the representations made by
Plaintiff’s counsel in his declaration and finds that the conduct of Plaintiff’s counsel discussed
above constitutes excusable neglect. Accordingly, the Court finds good cause to discharge the
order to show cause, and IT IS HEREBY ORDERED that the Court’s November 8, 2022, order to
show cause (ECF No. 8) is DISCHARGED.
IT IS FURTHER ORDERED that within seven days after entry of this order, Plaintiff’s
counsel SHALL either file proofs of service of the summons and complaint or a report setting forth
the reasons why the summons and complaint has not been served.
IT IS SO ORDERED.
November 17, 2022
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?