Mayweathers v. Swarthout et al

Filing 49

ORDER signed by Magistrate Judge Kendall J. Newman on 3/23/2012 ORDERING that the 7/24/12 trial date and the 4/23/12 trial confirmation hearing are VACATED pending further order of the court; the clerk is to send plaintiff one copy each of 42 , 45 , 48 orders, and one copy each of defendants' 44 , 46 , 47 motions; plaintiff shall, within 21 days, file and serve a statement explaining his recent lack of participation in this case; in addition, plaintiff shall, within 21 days, file and serve an opposition to defendants' 47 motion to dismiss, or request to voluntarily dismiss this action. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KARLUK M. MAYWEATHERS,

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Plaintiff,

No. 2:09-cv-3284 LKK KJN P

vs.
GARY SWARTHOUT, et al.,
Defendants.

ORDER
/

On February 28, 2012, this court vacated the Pretrial Conference scheduled in this

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action for March 9, 2012, and the deadlines for filing pretrial statements. (Dkt. No. 48.) As the

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undersigned explained therein, “plaintiff failed to file his separate pretrial statement, which was

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due on February 10, 2012. This is the second time that plaintiff missed his pretrial statement

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deadline; when he missed the initial deadline of December 16, 2011, defendants filed an ex parte

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application to extend all deadlines, which the court granted by order filed January 5, 2012.

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However, plaintiff has not since communicated with the court.” (Id. at 1.) The court directed

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plaintiff to timely respond to defendants’ pending motion to dismiss, which is premised on

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plaintiff’s failure to prosecute this action. (Id. at 3.) The court informed plaintiff that failure to

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file an opposition could result in dismissal of this action. (See Dkt. No. 48 at 2, quoting Fed. R.

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Civ. P. 41(b), and Local Rule 110.) The deadline for timely opposing defendants’ motion to
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dismiss (Dkt. No. 47), was March 16, 2012 (see Local Rule 230(l)); however, plaintiff has not

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responded, or otherwise communicated with the court.

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Plaintiff’s last communication with the court was December 20, 2011, when he

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filed a Notice of Change of Address, emphasizing that his mail needed to be sent to the “west

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(8103),” rather than “east (8101)” wing of the California Men’s Colony. (Dkt. No. 43.) Review

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of the docket indicates that, prior to the court’s receipt of this notice, the court’s Further

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Scheduling Order was served and re-served on plaintiff in the “east (8101)” wing. (See Dkt. No.

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42 and subsequent service notations.) Nevertheless, the order was not returned to this court,

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indicating that it had been delivered to plaintiff. Moreover, this court’s orders filed January 5,

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2012, and February 28, 2012, were properly served on plaintiff in the “west (8103)” wing. (See

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Dkt. Nos. 45 and 48, service notations.) However, defendants’ motions filed January 3, 2012,

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and February 24, 2012, were improperly served on plaintiff in the “east (8101)” wing. (See Dkt.

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No. 44 at 5; Dkt. No. 46 at 5; Dkt. No. 47 at 7.)

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In an abundance of caution, the court will accord plaintiff one additional
opportunity to appear in this action.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The dates for trial (July 24, 2012) and the trial confirmation hearing (April 23,

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2012), are hereby VACATED pending further order of this court.
2. The Clerk of Court is directed to send plaintiff one copy each of the orders

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filed November 2, 2011 (Dkt. No. 42) (note that all dates contained therein are now VACATED);

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January 5, 2012 (Dkt. No. 45); and February 28, 2012 (Dkt. No. 48). In addition, the Clerk of

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Court is directed to send plaintiff one copy each of defendants’ motion filed January 3, 2012

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(Dkt. No. 44); and two motions filed February 24, 2012 (Dkt. Nos. 46 and 47.)

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3. Plaintiff shall, within twenty-one (21) days after service of this order, file and
serve a statement explaining his recent lack of participation in this case.
4. In addition, plaintiff shall, within twenty-one (21) days after service of this
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order, file and serve an opposition to defendants’ motion to dismiss this action (Dkt. No. 47), or a

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request to voluntarily dismiss this action.

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5. Failure of plaintiff to fully and timely respond to this order shall result in a
recommendation to the district judge that this action be dismissed.

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SO ORDERED.
DATED: March 23, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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mayw3284.re.srv.

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