Levi v. Cate, et al

Filing 10

ORDER signed by Magistrate Judge Carolyn K. Delaney on 5/2/2012 DIRECTING the Clerk of Court to remit the excess filing fee of $5.00 to the plaintiff; ORDERING Plaintiff to serve summons on Defendants within 60 days; DIRECTING the Clerk of Court to issue and send to the plaintiff, one summons for each defendant named in the 1 Complaint and 4 copies of the form "Consent to Proceed Before United States Magistrate Judge"; ORDERING Plaintiff to serve a copy of this Order and a copy of the consent form concurrently with service of process, and to file a certificate of such service; SETTING a Status Conference for 8/8/2012 at 10:00 AM in Courtroom 26 (CKD) before Magistrate Judge Carolyn K. Delaney, Status Reports due 14 days prior to the Status Conference. (cc. Sacramento Financial) (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRED LEVI,

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Plaintiff,

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vs.

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CIV S-11-3164 MCE CKD PS

M. CATE, et al.,

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Defendants.

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ORDER
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Plaintiff has now paid the filing fee.1 The matter will therefore be set for status

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conference. This action has been pending for over five months. It does not appear from the

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docket that plaintiff has served defendants with summons in compliance with Federal Rule of

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Civil Procedure 4. Under Federal Rule of Civil Procedure 4(m), the court may order dismissal of

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a defendant who is not served within 120 days of the filing of the complaint. That time is now

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passed. Plaintiff will be granted an additional sixty days to complete service of summons.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Clerk of Court is directed to remit to plaintiff the excess filing fee

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payment of $5.00.

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Plaintiff paid $355.00. The filing fee is only $350.00. The court will therefore order
remittitur of the excess $5.00 to plaintiff.
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2. Plaintiff shall serve summons on defendants in compliance with Federal Rule

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of Civil Procedure 4 within sixty days. Failure to comply with this order may result in a

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recommendation that the action be dismissed.

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3. The Clerk of the Court is directed to issue and send plaintiff one summons for

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each defendant named in the complaint. Plaintiff shall complete service of process on defendants

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named in the complaint within 60 days and shall file with the court proof of service of summons.

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Plaintiff is cautioned that this action may be dismissed if service of process is not timely

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accomplished. See Fed. R. Civ. P. 4(m).

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4. Plaintiff shall serve a copy of this order and a copy of the form “Consent to

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Proceed Before United States Magistrate Judge” concurrently with service of process, and file

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with the Clerk a certificate of such service.

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5. Failure to comply with the Federal Rules of Civil Procedure or Local Rules of

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Practice for the United States District Court, Eastern District of California, or orders of this court,

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may result in dismissal of this action. Even parties without counsel will be expected to comply

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with the procedural rules.

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6. A Status (Pretrial Scheduling) Conference is set for August 8, 2012 at 10:00

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a.m. in courtroom no. 26 before the undersigned. All parties shall appear by counsel or in

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person if acting without counsel.

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7. Not later than fourteen (14) days prior to the Status Conference, the parties
shall file status reports2 addressing the following matters:

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a. Service of process;

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b. Possible joinder of additional parties;

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c. Any expected or desired amendment of the pleadings;

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d. Jurisdiction and venue;

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The parties are encouraged, when possible, to file a joint status report.
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e. Anticipated motions and their scheduling;

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f. The report required by Federal Rule of Civil Procedure 26

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outlining the proposed discovery plan and its scheduling, including disclosure of expert

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witnesses;

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g. Future proceedings, including setting appropriate cut-off dates
fordiscovery and law and motion, and the scheduling of a pretrial conference and trial;

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h. Special procedures, if any;

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i. Estimated trial time;

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j. Modification of standard pretrial procedures specified by the rules due

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to the simplicity or complexity of the proceedings;

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k. Whether the case is related to any other cases, including
bankruptcy;

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l. Whether a settlement conference should be scheduled;

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m. Whether counsel will stipulate to the magistrate judge assigned to this

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matter acting as settlement judge and waiving disqualification by virtue of her so acting, or

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whether they prefer to have a settlement conference before another judge;

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n. Any other matters that may add to the just and expeditious
disposition of this matter.

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8. Plaintiff and counsel are reminded of their continuing duty to notify chambers

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immediately of any settlement or other disposition (see Local Rule 160). In addition, the parties

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are cautioned that pursuant to Local Rule 230(c), opposition to the granting of a motion must be

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filed fourteen days preceding the noticed hearing date. The Rule further provides that “[n]o party

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will be entitled to be heard in opposition to a motion at oral arguments if written opposition to

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the motion has not been timely filed by that party.” Moreover, Local Rule 230(i) provides that

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failure to appear may be deemed withdrawal of opposition to the motion or may result in

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sanctions. Finally, Local Rule 110 provides that failure to comply with the Local Rules “may be
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grounds for imposition of any and all sanctions authorized by statute or Rule or within the

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inherent power of the Court.”

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9. The parties are informed that they may, if all consent, have this case tried by a

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United States Magistrate Judge while preserving their right to appeal to the Ninth Circuit Court

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of Appeals. See 28 U.S.C. § 636(c). The form for consent to trial by a magistrate judge is

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attached. Any party choosing to consent may complete the form and return it to the Clerk of the

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Court.

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10. The Clerk of the Court is directed to send plaintiff copies (one for each

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defendant plus one for the plaintiff) of the form, “Consent to Proceed Before United States

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Magistrate Judge,” with this order.

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Dated: May 2, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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