Adams v. DeSimoni

Filing 11

ORDER signed by Magistrate Judge Kendall J. Newman on 8/29/13 PARTIALLY GRANTING 10 Motion to Reschedule Hearing Date and/or Extension of Time. No later than 9/12/13, plaintiff shall file a statement addressing the specific topics outlined in the court's 8 Order. Upon receipt and review of plaintiff's statement, the court will issue a further order regarding the future progress and scheduling of the case. Alternatively, plaintiff may file a notice of voluntary dismissal of the action without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) no later than 9/12/13. Failure to file either the required statement or a notice of voluntary dismissal without prejudice by the required deadline will result in a recommendation that the action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). The Clerk of Court shall serve on plaintiff a copy of the court's prior 8/16/13 order along with this order. (Meuleman, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

CONSTANCE D. ADAMS,

12

Plaintiff,

13
14

v.

No. 2:13-cv-0440 TLN KJN PS

ORDER

MIKE DESIMONI, SR.,

15

Defendant.

16
On March 5, 2013, plaintiff Constance Adams, proceeding without counsel, filed this

17
18

action alleging a claim of employment discrimination primarily based on race under Title VII of

19

the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. against defendant Mike DeSimoni, Sr.

20

(ECF No. 1.)1 On August 15, 2013, the court conducted a status conference in this matter. (ECF

21

No. 7.) Following the status conference, the court issued an order requiring plaintiff to file a

22

statement addressing specific topics no later than August 29, 2013. (ECF No. 8.)
Thereafter, on August 26, 2013, plaintiff filed a motion to reschedule the “hearing date as

23
24

of August 29, 2013.” (ECF No. 10.) Because no court hearing is set for August 29, 2013, the

25

court construes plaintiff’s filing as a motion for an extension of time to comply with the court’s

26

order requiring the filing of the above-mentioned statement no later than August 29, 2013. In her

27
28

1

This action proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21).
1

1

motion, plaintiff indicates that although she has been making efforts to obtain counsel, and one

2

attorney is apparently reviewing her case, she has thus far been unsuccessful in retaining counsel.

3

Plaintiff essentially requests a three-months to one-year stay of the case to allow her to obtain

4

representation. (ECF No. 10.)

5

Although the court is sympathetic to the difficulties faced by a pro se litigant in

6

representing herself in federal court, and encourages plaintiff to continue her efforts to obtain

7

counsel, the court declines to grant plaintiff a three-month to one-year extension of time.

8

Numerous litigants are compelled by financial or other circumstances to represent themselves in

9

federal court, and pro se status is not in itself a proper basis for staying a case. Moreover, as the

10

court noted at the status conference, the court has concerns as to whether service of process on the

11

named defendant, Mike DeSimoni, Sr., has been properly effectuated and whether plaintiff has

12

even named the proper defendant in this action. In light of those concerns, the court ordered

13

plaintiff to file the above-mentioned statement addressing topics related to how service of process

14

was accomplished, Mr. DeSimoni’s involvement with respect to plaintiff’s claims, etc. These

15

topics primarily concern facts that should be in plaintiff’s possession and do not require complex

16

legal arguments.

17

If plaintiff retains counsel and counsel enters an appearance in this case, the court would

18

certainly be willing to entertain a request for extension of time filed by counsel to enable him or

19

her to properly evaluate the case. However, at this time, there does not appear to be any

20

immediate prospect of plaintiff retaining counsel, and there are no proper grounds to stay the case

21

or grant a significant extension of time.

22

Therefore, plaintiff will be required to file the statement in response to the court’s prior

23

August 16, 2013 order no later than September 12, 2013. If plaintiff feels that she is unable to

24

prosecute the case without counsel at this time, she may alternatively file a notice of voluntary

25

dismissal of the action without prejudice pursuant to Federal Rule of Civil Procedure

26

41(a)(1)(A)(i).

27

Accordingly, IT IS HEREBY ORDERED that:

28

1. Plaintiff’s motion to reschedule the “hearing date as of August 29, 2013,” construed as
2

1

a motion for extension of time (ECF No. 10), is PARTIALLY GRANTED.

2

2. No later than September 12, 2013, plaintiff shall file a statement addressing the

3

specific topics outlined in the court’s August 16, 2013 order. Upon receipt and review

4

of plaintiff’s statement, the court will issue a further order regarding the future

5

progress and scheduling of the case.

6

3. Alternatively, plaintiff may file a notice of voluntary dismissal of the action without

7

prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) no later than

8

September 12, 2013.

9

4. Failure to file either the required statement or a notice of voluntary dismissal without

10

prejudice by the required deadline will result in a recommendation that the action be

11

dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b).

12
13
14
15

5. The Clerk of Court shall serve on plaintiff a copy of the court’s prior August 16, 2013
order along with this order.
IT IS SO ORDERED.
Dated: August 29, 2013

16
17
18
19
20
21
22
23
24
25
26
27
28
3