White v. Commissioner of Social Security

Filing 32

ORDER signed by Magistrate Judge Kendall J. Newman on 5/8/2014 DIRECTING the Clerk of Court to vacate the assignment of this action to a United States District Judge; ORDERING that the caption on all documents henceforth filed in this action be 2:13- cv-00626 KJN (SS)(PS); GRANTING 31 Request to Proceed without Counsel; DIRECTING the Clerk of Court to terminate Attorney James Joseph Lynch, Jr.; DENYING WITHOUT PREJUDICE, the plaintiff's request to schedule a Status Conference; STAYING 26 Amended Findings and Recommendations; ORDERING the plaintiff to complete service of process on the Commissioner of Social Security as outlined in 16 Order and to file a declaration that such service was properly accomplished within fourteen (14) d ays; ALTERNATIVELY ORDERING the plaintiff to file a Request for Voluntary Dismissal of the action without prejudice pursuant to F.R.Cv.P. Rule 41(a)(1)(A)(i) within fourteen (14) days; INFORMING the plaintiff that a failure to strictly and fully comp ly with the terms and deadlines of this order will result in adoption of the 26 Amended Findings and Recommendations and dismissal of the action pursuant to F.R.Cv.P. 41(b); DIRECTING the Clerk of Court to promptly serve on the plaintiff the 1 Complaint, 2 Civil Cover Sheet, 3 Social Security New Case Documents, 4 Summons, 16 Order, and 26 Amended Findings and Recommendations. (Michel, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NATE WHITE,

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No. 2:13-cv-0626-WBS-KJN
Plaintiff,

v.

ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
This action was initially assigned to the undersigned pursuant to E.D. Cal. L.R.

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302(c)(15). However, on January 28, 2014, the undersigned directed that a United States District

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Judge be randomly assigned to the action in light of the issuance of findings and

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recommendations for dismissal of the action pursuant to Federal Rule of Civil Procedure 41(b),

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and because plaintiff had not at that time consented to the jurisdiction of a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 21.) Subsequently, amended

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findings and recommendations for dismissal pursuant to Federal Rule of Civil Procedure 41(b)

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were issued on March 17, 2014, and remain pending. (ECF No. 26.)

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However, on March 24, 2014, plaintiff consented to the jurisdiction of a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 27.) As such, assignment to a United

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States District Judge is no longer necessary. Therefore, the court directs the Clerk of Court to

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vacate the assignment of the action to a United States District Judge.
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Additionally, on March 28, 2014, in light of plaintiff’s representation that plaintiff’s

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counsel (James Joseph Lynch) “has vacated this case due to his sudden illness and relocating to

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the Philippines,” the court granted plaintiff’s request for an extension of time to obtain new

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counsel and file objections to the pending amended findings and recommendations. (ECF Nos.

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28, 29.) In that order, the court directed as follows:

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No later than May 1, 2014, Mr. Lynch shall file a substitution of
counsel, signed by Mr. Lynch, plaintiff himself, and any new
counsel (if applicable), indicating that Mr. Lynch’s representation
of plaintiff has been terminated, and that plaintiff is either
proceeding without counsel or will be represented by a specified
new attorney. If plaintiff retains a new attorney, plaintiff’s new
counsel shall appear and file any objections to the findings and
recommendations no later than May 1, 2014. Alternatively, if
plaintiff is unable to retain counsel, plaintiff himself shall file any
objections to the findings and recommendations no later than May
1, 2014. No further extensions of time will be granted, absent
extraordinary circumstances, which would not include plaintiff’s
inability to obtain a new attorney.

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(ECF No. 29 at 2) (bullet point numbering omitted). To date, no objections to the amended

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findings and recommendations have been filed by Mr. Lynch, any new counsel, or plaintiff

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himself. However, on April 28, 2014, plaintiff filed a request to proceed without counsel in this

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action, as well as a request for an expedited status conference. (ECF No. 31.)
The court grants plaintiff’s request to proceed without counsel. Furthermore, because

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most of the fault with respect to how this action was handled lies with Mr. Lynch,1 the court finds

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it appropriate to grant plaintiff, now acting pro se, a brief, final opportunity to complete service

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of process in this action. The court stays the amended findings and recommendations during this

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additional period of time granted to complete service of process. That said, the court emphasizes

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that no further extensions of time will be given, absent extraordinary circumstances, which would

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not include plaintiff’s pro se status. Given the protracted history of this case, the action must now

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either promptly move forward or be dismissed.

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As outlined in the amended findings and recommendations, most of Mr. Lynch’s conduct at
issue occurred long before his alleged sudden illness and relocation to the Philippines. (See ECF
No. 26.)
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Finally, in light of the above, the court finds it unnecessary to schedule a status conference

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at this juncture. Consequently, the court denies plaintiff’s request to set a status conference.

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Accordingly, for the reasons outlined above, IT IS HEREBY ORDERED that:

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1. The Clerk of Court shall vacate the assignment of this action to a United States

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District Judge. Henceforth the caption on documents filed in this action shall be No.

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2:13-cv-0626 KJN.

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2. Plaintiff’s request to proceed without counsel (ECF No. 31) is granted. The Clerk of

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Court shall terminate Mr. Lynch as counsel for plaintiff and reflect plaintiff’s own

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address on the docket as 816 H Street, Suite 257, Sacramento, CA 95814.

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3. Plaintiff’s request to schedule a status conference is denied without prejudice.

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4. The amended findings and recommendations (ECF No. 26) are stayed.

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5. Within fourteen (14) days of this order, plaintiff shall both (a) complete service of

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process on the Commissioner of Social Security in accordance with the Federal Rules

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of Civil Procedure, as outlined in detail in the court’s January 8, 2014 order (see ECF

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No. 16), and (b) file a declaration under penalty of perjury that demonstrates that such

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service was properly accomplished. No further extensions of time will be granted,

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absent extraordinary circumstances, which would not include plaintiff’s pro se

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status.

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6. Alternatively, if plaintiff no longer wishes to pursue the action, he may instead file a

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request for voluntary dismissal of the action without prejudice pursuant to Federal

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Rule of Civil Procedure 41(a)(1)(A)(i) within fourteen (14) days of this order.

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7. Failure to strictly and fully comply with the terms and deadlines of this order will

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result in adoption of the amended findings and recommendations and dismissal of the

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action pursuant to Federal Rule of Civil Procedure 41(b).

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8. Along with a copy of this order, the Clerk of Court shall promptly serve (i) a copy of

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the complaint, summons, civil cover sheet, scheduling order, and any other process

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documents in this matter; (ii) a copy of this court’s January 8, 2014 order (ECF No.

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16); and (iii) a copy of the amended findings and recommendations (ECF No. 26) on
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plaintiff at 816 H Street, Suite 257, Sacramento, CA 95814.
IT IS SO ORDERED.
Dated: May 8, 2014

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