Adams v. DeSimoni

Filing 8

ORDER signed by Magistrate Judge Kendall J. Newman on 8/16/2013 ORDERING that no later than 8/29/13, plaintiff shall file a statement addressing the specific topics outlined in the order. (Donati, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CONSTANCE D. ADAMS,

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Plaintiff,

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v.

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

ORDER

MIKE DESIMONI, SR.,

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Defendant.

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

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

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

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(ECF No. 1.) On March 11, 2013, the court granted plaintiff’s request to proceed in forma

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pauperis and ordered service of the complaint on defendant DeSimoni. (ECF No. 3.) Plaintiff

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was directed to supply the U.S. Marshal with all the documents necessary to effectuate service of

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process on defendant DeSimoni within 28 days of the court’s order and, within 10 days thereafter,

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to file a statement with the court indicating that such documents had been submitted to the U.S.

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Marshal. (Id.)

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The court’s March 11, 2013 order setting status conference also cautioned plaintiff that

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the action may be dismissed if service of process is not accomplished within 120 days. (ECF No.

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4 at 1); see Fed. R. Civ. P. 4(m). That same order set a status conference for August 15, 2013, at
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10:00 a.m., in Courtroom No. 25 before the undersigned; required the parties to file status reports

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(preferably a joint status report) not later than seven (7) days prior to the status conference; and

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directed the parties to appear by counsel or in person (if acting without counsel) at the status

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conference. (ECF No. 4 at 2.) Furthermore, the order cautioned that “[f]ailing to obey federal or

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local rules, or [an] order of this court, may result in dismissal of this action. This court will

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construe pro se pleadings liberally, but pro se litigants must comply with the procedural rules.”

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(Id. at 3.) Finally, the order notified the parties that “Local Rule 110 provides that failure to

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comply with the Local Rules may be grounds for imposition of any and all sanctions authorized

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by statute or Rule or within the inherent power of the Court.” (Id.)

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Despite the court’s above-mentioned orders, plaintiff failed to file a statement indicating

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that she had submitted the required documents to the U.S. Marshal to effectuate service of

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process; no status reports were filed; and there had been no docket activity by any party since the

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case was initially filed in March 2013.

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At the August 15, 2013 status conference, plaintiff appeared and indicated that she

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believed that defendant DeSimoni had been properly served with process by a private process

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server plaintiff had retained. The court ordered that plaintiff’s proof of service, which had not

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previously been submitted to the court, be filed and made a part of the court record. (ECF No. 7.)

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For the reasons discussed at the status conference and in light of the court’s concerns as to

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whether service of process has been properly effectuated and whether plaintiff has even named

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the proper defendant in this action, the court orders plaintiff to file a statement no later than

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August 29, 2013, addressing the following topics:

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(a) How service of process on defendant DeSimoni was attempted, i.e., by what methods,

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at which address(es), how the address was chosen, etc. (Plaintiff should seek

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clarification from the private process server as necessary).

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(b) What efforts plaintiff made, subsequent to the status conference, to follow up with

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defendant DeSimoni or his company regarding their response to plaintiff’s lawsuit.

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(c) The status and title of defendant DeSimoni, which company plaintiff worked for, the
relationship between plaintiff and defendant DeSimoni, and why plaintiff elected to
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name Mr. DeSimoni as a defendant in this action (as opposed to a particular supervisor

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or president of the company for which plaintiff was employed).

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(d) Whether there are any other persons plaintiff believes should be named as a defendant
based on the incidents giving rise to plaintiff’s claims.

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(e) The status of plaintiff’s efforts to obtain counsel.

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Upon receipt and review of plaintiff’s statement, the court will issue a further order

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regarding the future progress and scheduling of the case.

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Finally, plaintiff is hereby cautioned that future failure to comply with court orders, the

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Federal Rules of Civil Procedure, and this court’s Local Rules1 may result in the imposition of

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sanctions, including potential dismissal of the action with prejudice pursuant to Federal Rule of

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Civil Procedure 41(b).
“Pro se litigants must follow the same rules of procedure that govern other litigants.”

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King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (overruled on other grounds). A district court

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may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to Federal

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Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case, or fails to

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comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local rules.

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See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act sua

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sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S.

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Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action

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pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute

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or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52,

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53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground

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for dismissal”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal

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Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with

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any order of the court”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir.

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1986) (per curiam) (stating that district courts have inherent power to control their dockets and

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A copy of the court’s Local Rules can be obtained from the Clerk’s Office or on the court’s
website at http://www.caed.uscourts.gov/caednew/index.cfm/rules/local-rules/.
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may impose sanctions including dismissal or default); see also E.D. Cal. L.R. 110, 183(a).

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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No later than August 29, 2013, plaintiff shall file a statement addressing the specific

topics outlined in the order above.
2. Upon receipt and review of plaintiff’s statement, the court will issue a
further order regarding the future progress and scheduling of the case.
3. Plaintiff is cautioned that future failure to comply with court orders, the Federal Rules

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of Civil Procedure, and this court’s Local Rules may result in the imposition of sanctions,

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including potential dismissal of the action with prejudice pursuant to Federal Rule of Civil

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Procedure 41(b).

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IT IS SO ORDERED.

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Dated: August 16, 2013

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