Atterbery v. Yukon Zak LLC et al

Filing 10

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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHANNA ATTERBERY,

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Petitioner,
v.
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)

Defendants.

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Plaintiff commenced this action with the filing of a complaint on August 19, 2022. (ECF

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No. 1.) On August 23, 2022, the Clerk of Court issued a summons, and the Court entered an Order

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that, among other things, directed Plaintiff to “diligently pursue service of summons and complaint”

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and “promptly file proofs of service.” (ECF Nos. 4 & 6 at p. 1). As of the date of this Order –

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some three months later – Plaintiff has not filed proofs of service for the summons and complaint.

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On November 8, 2022, Plaintiff was ordered to show cause in writing within three days why

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she should not be sanctioned for failing to prosecute this action. (ECF No. 8.) Eight days later, on

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November 16, 2022, Plaintiff’s counsel filed a declaration in which he attested that the failure to

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prosecute was due in part to an oversight related to the file transfer in his law firm. Plaintiff’s

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counsel further attested that at the time the Court issued its order to show cause, he was out of the

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office due to the birth of his child. Plaintiff’s counsel declares that upon return to the office, he

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discovered the existence of the order to show cause and immediately sent out for service the

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summons and complaint. (ECF No. 9).

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To determine whether neglect is excusable, a court must consider four factors: “(1) the

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danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the

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proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” In re

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Veritas Software Corp. Sec. Litig., 496 F.3d 962, 973 (9th Cir. 2007).

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Based on his declaration, the Court understands Plaintiff’s counsel was not monitoring his

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law firm’s email account between the date the Court docketed the order to show cause (November

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8, 2022) and the date he returned to the office following the birth of his child (November 16, 2022).

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Whether or not Plaintiff’s counsel was able to monitor his law firm’s email account, the Court notes

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that the website of Plaintiff’s retained law firm reflects that counsel has several colleagues that

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should have been available to monitor filings made in counsel’s cases during his absence.

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Plaintiff’s counsel is reminded that he is obligated to exercise reasonable diligence in

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representing his client and avoid undue delay in pursuing this action under Rule 1.3 of the California

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Rules of Professional Conduct.

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The Court has considered the Veritas factors in the light of the representations made by

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Plaintiff’s counsel in his declaration and finds that the conduct of Plaintiff’s counsel discussed

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above constitutes excusable neglect. Accordingly, the Court finds good cause to discharge the

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order to show cause, and IT IS HEREBY ORDERED that the Court’s November 8, 2022, order to

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show cause (ECF No. 8) is DISCHARGED.

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IT IS FURTHER ORDERED that within seven days after entry of this order, Plaintiff’s

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counsel SHALL either file proofs of service of the summons and complaint or a report setting forth

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the reasons why the summons and complaint has not been served.

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IT IS SO ORDERED.

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Dated:

November 17, 2022

___________________

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UNITED STATES MAGISTRATE JUDGE

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