Whitsitt v. Hedy Holmes Staffing Services et al

Filing 49

ORDER signed by Magistrate Judge Allison Claire on 6/18/15 ORDERING its 6/6/15, order to show cause, ECF No. 48 , is DISCHARGED; and Plaintiff's motion for an extension of time, ECF No. 47 , is GRANTED; Defendants' motion to dismiss, EC F No. 43 , is hereby scheduled for hearing in front of the undersigned on 7/15/15, at 10:00 a.m. in Courtroom No. 26; Plaintiff must file an opposition or notice of non-opposition by 7/1/15, in accordance with Local Rule 230. If plaintiff once again neglects to do so the court will issue findings and recommendations recommending that his case be dismissed. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM J. WHITSITT,

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Plaintiff,

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No. 2:13-cv-00117-MCE-AC

v.

ORDER

HEDY HOLMES STAFFING SERVICES,
et al.,
Defendants.

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This matter is before the undersigned pursuant to Local Rule 302(c)(21). Currently before

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the court is plaintiff’s motion to continue the hearing set for defendants’ motion to dismiss. ECF

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No. 47.

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On March 27, 2015, defendants filed a motion to dismiss plaintiff’s FAC, with a hearing

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scheduled for May 20, 2015. ECF No. 43. On May 14, 2015, the court continued the hearing via

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minute order to June 10, 2015, because plaintiff had failed to file a timely opposition or notice of

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non-opposition in violation of Local Rule 230(c). ECF No. 45. The court also warned plaintiff

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that a second failure to comply with Local Rule 230(c) would result in the issuance of an order to

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show cause for failure to prosecute. Id. The court continued its hearing again to June 17, 2015,

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four days later. ECF No. 46. Plaintiff again failed to file a timely opposition, and on June 11,

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2015, the court issued an order to show cause for failure to prosecute. ECF No. 48.
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Unbeknownst to the court however, plaintiff had filed a motion for a thirty (30) day

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continuance of the hearing on defendants’ motion to dismiss on June 10, 2015. ECF No. 47.

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Plaintiff’s motion explains that he never received notice of defendants’ motion to dismiss because

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he was away from home taking care of a friend who was diagnosed with cancer. Id. Apparently,

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plaintiff left to take care of his friend on the morning that defendants’ motion to dismiss was

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delivered to his home. Id. Although he asked one of his roommates to keep an eye on his mail

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for him while he was gone, another roommate happened to picked up the mail that day. Id. That

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roommate put defendants’ motion in a pile, where it stayed until plaintiff returned home on June

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5, 2015. Id.

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The court will grant plaintiff’s motion in light of his pro se status. However, the court

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also warns plaintiff that he has a duty to diligently keep track of this matter and adhere to

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deadlines. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (citing

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Fed. R. Civ. P. 16(b)). That duty requires that he keep track of his mail. In addition, the court

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will be reluctant to grant any further requests to continue the hearing on defendants’ motion to

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dismiss. This matter has been ongoing since January 22, 2013; plaintiff has obtained a release

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from judgment that was secured because he had failed to comply with a court order, as well as

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multiple extensions of time. While the court understands that plaintiff’s pro se status and living

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situation may make adhering to deadlines difficult, he can only ignore court orders and fail to

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adhere to deadlines so many times before his requests for extensions look like they are being

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taken in bad faith. See Henry v. Gill Indus., Inc., 983 F.2d 943, 948 (9th Cir. 1993)

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(“‘[D]isobedient conduct not shown to be outside the control of the litigant; is all that is required

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to demonstrate willfulness, bad faith, or fault.”)

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In accordance with the foregoing and for good cause shown, THE COURT HEREBY
ORDERS that:

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1. Its June 6, 2015, order to show cause, ECF No. 48, is DISCHARGED; and

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2. Plaintiff’s motion for an extension of time, ECF No. 47, is GRANTED.

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3. Defendants’ motion to dismiss, ECF No. 43, is hereby scheduled for hearing in front

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of the undersigned on July 15, 2015, at 10:00 a.m. in Courtroom No. 26. Plaintiff
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must file an opposition or notice of non-opposition by July 1, 2015, in accordance

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with Local Rule 230. If plaintiff once again neglects to do so the court will issue

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findings and recommendations recommending that his case be dismissed.

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DATED: June 18, 2015

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