Lance et al v. Commerce Trust Company, et al

Filing 15

ORDER AND ORDER to SHOW CAUSE signed by Magistrate Judge Kendall J. Newman on 5/7/15 ORDERING that within 21 days of this order, plaintiffs shall pay to the Clerk $150.00 in sanctions based on plaintiffs' failure to comply with the court&# 039;s order and failure to prosecute their case; Within 21 days, plaintiffs shall show cause in writing why this action should not be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b) for plaintiffs' failure to comply wi th the court's order and failure to prosecute their case; Within 21 days, plaintiffs shall file a first amended complaint that complies with the court's 4/3/15 order; Failure to timely comply with this order will result in a recommendati on that the action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b); Alternatively, if plaintiffs conclude that they no longer wish to pursue the action in federal court at this time, they may instead file a notice of vol untary dismissal of the action without prejudice in lieu of paying the sanctions, responding to the order to show cause, and filing a first amended complaint, as outlined above; The Clerk shall serve another copy of the court's prior 4/3/15 order on plaintiffs along with this order. The 6/25/15 status conference in this matter is vacated, subject to rescheduling at a later juncture, if appropriate. (Becknal, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ANNA LANCE & DON LANCE,

12
13
14

No. 2:15-cv-0341-GEB-KJN PS

Plaintiffs,
v.

ORDER AND

COMMERCE TRUST COMPANY, et al.,

ORDER TO SHOW CAUSE

15
16

Defendants.

17
18

On April 3, 2015, the court dismissed plaintiffs’ original complaint with leave to amend.

19

(ECF No. 14.) In that order, the court granted plaintiffs 28 days to either (a) file a first amended

20

complaint or (b) file a notice of voluntary dismissal of the action without prejudice. (Id.)

21

Plaintiffs were cautioned that failure to file either a first amended complaint or a notice of

22

voluntary dismissal by the required deadline may result in dismissal of the action with prejudice

23

pursuant to Federal Rule of Civil Procedure 41(b). (Id.) Although the applicable deadline has

24

now passed, the court’s records indicate that plaintiffs failed to file either a first amended

25

complaint or a notice of voluntary dismissal. Furthermore, plaintiffs have not requested an

26

extension of time to comply with the court’s order.

27

The court has carefully considered whether the action should be dismissed at this juncture.

28

Nevertheless, in light of plaintiffs’ pro se status and the court’s desire to resolve the action on the
1

1

merits, the court first attempts lesser sanctions in the form of an order to show cause and

2

monetary sanctions, as outlined below.

3

Accordingly, IT IS HEREBY ORDERED that:

4

1. Within 21 days of this order, plaintiffs shall pay to the Clerk of Court $150.00 in

5

monetary sanctions based on plaintiffs’ failure to comply with the court’s order and

6

failure to prosecute their case.

7

2. Within 21 days of this order, plaintiffs shall show cause in writing why this action

8

should not be dismissed with prejudice pursuant to Federal Rule of Civil Procedure

9

41(b) for plaintiffs’ failure to comply with the court’s order and failure to prosecute

10
11
12
13
14
15

their case.
3. Within 21 days of this order, plaintiffs shall file a first amended complaint that
complies with the court’s April 3, 2015 order.
4. Failure to timely comply with this order will result in a recommendation that the
action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b).
5. Alternatively, if plaintiffs conclude that they no longer wish to pursue the action in

16

federal court at this time, they may instead file a notice of voluntary dismissal of the

17

action without prejudice in lieu of paying the sanctions, responding to the order to

18

show cause, and filing a first amended complaint, as outlined above.

19
20
21
22
23
24

6. The Clerk of Court shall serve another copy of the court’s prior April 3, 2015 order on
plaintiffs along with this order.
7. The June 25, 2015 status conference in this matter is vacated, subject to rescheduling
at a later juncture, if appropriate.
IT IS SO ORDERED.
Dated: May 7, 2015

25
26
27
28
2