(PC) Jones v. Liberty Mutual Insurance et al

Filing 32

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 10/9/2020 STRIKING 26 Motion to Dismiss and REMOVING it from the calendar because it is Moot. It is further RECOMMENDED that this action be Dismissed, without pre judice, for lack of prosecution and for failure to comply with the court's orders. Referred to Judge John A. Mendez. Objections to these findings and recommendations are due within 21 days after being served with these findings and recommendations. (Coll, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LLOYD DYLAN JONES, 12 13 No. 2:19-cv-01814 JAM AC PS Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 DERIK TREDINNICK, et al., 15 Defendants. 16 17 Plaintiff is a prisoner proceeding in this action pro se. The action was accordingly 18 referred to the undersigned for pretrial matters by E.D. Cal. R. (“Local Rule”) 302(c)(17). On 19 July 7, 2020, defendants filed a motion to dismiss. ECF No. 22. Plaintiff did not respond. The 20 court issued an order directing plaintiff to show cause within 14 days why his failure to respond 21 should not result in the case being dismissed for failure to prosecute. ECF No. 24. Plaintiff did 22 not respond, although the order was served twice following plaintiff’s notice of change of 23 address. ECF No. 24, Docket Entries on August 18, 2020 and August 19, 2020. On August 19, 24 2020 defendants filed an amended motion to dismiss, which was taken under submission. ECF 25 Nos. 26, 27. On September 1, 2020, a docket notation was entered that plaintiff had refused 26 delivery of the order to show cause. 27 Plaintiff’s lack of response to the order to show cause led the court to conclude that 28 plaintiff had abandoned this case, and findings and recommendations were issued recommending 1 1 that this case be dismissed for failure to prosecute. ECF No. 28. Over two weeks after the 2 findings and recommendations were issued, plaintiff responded to the order to show cause. ECF 3 No. 29. The court, finding that plaintiff’s appearance warranted such action, vacated the findings 4 and recommendations and re-instated the motion, making clear that plaintiff’s opposition briefing 5 would be due October 5, 2020. ECF No. 30. That deadline has now passed and plaintiff has not 6 submitted his opposition. 7 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed, without 8 prejudice, for lack of prosecution and for failure to comply with the court’s order. See Fed. R. 9 Civ. P. 41(b); Local Rule 110, 183(b). 10 11 12 Further, it is ORDERED that defendants’ motion to dismiss (ECF No. 26) is STRICKEN and removed from the calendar because it is MOOT. These findings and recommendations are submitted to the United States District Judge 13 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 14 days after being served with these findings and recommendations, any party may file written 15 objections with the court. Such document should be captioned “Objections to Magistrate Judge’s 16 Findings and Recommendations.” Local Rule 304(d). Failure to file objections within the 17 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 18 F.2d 1153 (9th Cir. 1991). 19 DATED: October 9, 2020 20 21 22 23 24 25 26 27 28 2

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