Shah v. Employment Development Department

Filing 26

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/25/2012 VACATING the Status (Pretrial Scheduling) Conference set for 7/11/2012; RECOMMENDING that this action be dismissed without prejudice and that the Clerk of Court be directed to close this case pursuant to F.R.Cv.P. 41(b) & L.R. 110. Referred to Judge Garland E. Burrell, Jr. Objections within 14 days. (Michel, G)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

FERNANDO SHAH,
Plaintiff,

11
12
13

No. CIV S-11-318 GEB EFB PS

vs.
EMPLOYMENT DEVELOPMENT
DEPARTMENT,
ORDER AND
FINDINGS AND RECOMMENDATIONS

14
Defendant.
15

/

16

This case, in which plaintiff is proceeding pro se, was referred to the undersigned

17

pursuant to 28 U.S.C. § 636(b)(1) and Eastern District of California Local Rule 302(c)(21). On

18

February 23, 2012, the court dismissed plaintiff’s complaint and granted plaintiff thirty days to

19

file an amended complaint. Dckt. No. 21. Then, on March 23, 2012, plaintiff filed a document

20

labeled “First Amended Complaint.” Dckt. No. 22. However, because the document was not an

21

amended complaint and instead was an opposition to defendant’s earlier motion to dismiss, on

22

April 6, 2012, the court struck the purported amended complaint and gave plaintiff until April

23

30, 2012 to file a proper amended complaint to the extent that plaintiff could properly state a

24

claim under Title II of the ADA, the Rehabilitation Act of 1973, or another appropriate federal

25

statute. The order further provided that “[f]ailure to timely file an amended [would] result in a

26

recommendation that this action be dismissed.” Id. at 3.
1

1

On May 8, 2012, because the April 30 deadline had passed and plaintiff had not filed an

2

amended complaint or otherwise responded to the court’s April 6 order, the court ordered

3

plaintiff to show cause, on or before May 21, 2012, why this action should not be dismissed for

4

failure to prosecute and/or for failure to comply with court orders. Dckt. No. 25. The order also

5

directed plaintiff to file an amended complaint on or before May 21, 2012, and warned that a

6

failure to comply would “result in a recommendation that this action be dismissed for failure to

7

prosecute and/or for failure to comply with court orders. See Fed. R. Civ. P. 41(b); E.D. Cal.

8

L.R. 110.” Id. at 2.

9
10
11
12

Once again, the deadline has passed and plaintiff has not filed an amended complaint or
otherwise responded to the court’s order to show cause.
Accordingly, IT IS HEREBY ORDERED that the status (pretrial scheduling) conference
currently set for hearing on July 11, 2012 is vacated.1

13

IT IS FURTHER RECOMMENDED that this action be dismissed without

14

prejudice, and that the Clerk be directed to close this case. Fed. R. Civ. P. 41(b); L.R. 110.

15

These findings and recommendations are submitted to the United States District Judge

16

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

17

after being served with these findings and recommendations, any party may file written

18

objections with the court and serve a copy on all parties. Such a document should be captioned

19

“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

20

within the specified time may waive the right to appeal the District Court’s order. Turner v.

21

Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

22

Dated: May 25, 2012.

23
24
25
26

1

However, if the recommendation of dismissal herein is not adopted by the district judge,
the undersigned will reschedule the status conference and require the parties to submit status
reports.
2