(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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LLOYD DYLAN JONES,

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No. 2:19-cv-01814 JAM AC PS

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

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DERIK TREDINNICK, et al.,

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Defendants.

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Plaintiff is a prisoner proceeding in this action pro se. The action was accordingly

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referred to the undersigned for pretrial matters by E.D. Cal. R. (“Local Rule”) 302(c)(17). On

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July 7, 2020, defendants filed a motion to dismiss. ECF No. 22. Plaintiff did not respond. The

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court issued an order directing plaintiff to show cause within 14 days why his failure to respond

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should not result in the case being dismissed for failure to prosecute. ECF No. 24. Plaintiff did

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not respond, although the order was served twice following plaintiff’s notice of change of

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address. ECF No. 24, Docket Entries on August 18, 2020 and August 19, 2020. On August 19,

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2020 defendants filed an amended motion to dismiss, which was taken under submission. ECF

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Nos. 26, 27. On September 1, 2020, a docket notation was entered that plaintiff had refused

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delivery of the order to show cause.

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Plaintiff’s lack of response to the order to show cause led the court to conclude that

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plaintiff had abandoned this case, and findings and recommendations were issued recommending
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that this case be dismissed for failure to prosecute. ECF No. 28. Over two weeks after the

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findings and recommendations were issued, plaintiff responded to the order to show cause. ECF

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No. 29. The court, finding that plaintiff’s appearance warranted such action, vacated the findings

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and recommendations and re-instated the motion, making clear that plaintiff’s opposition briefing

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would be due October 5, 2020. ECF No. 30. That deadline has now passed and plaintiff has not

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submitted his opposition.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed, without

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prejudice, for lack of prosecution and for failure to comply with the court’s order. See Fed. R.

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Civ. P. 41(b); Local Rule 110, 183(b).

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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

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21)

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days after being served with these findings and recommendations, any party may file written

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objections with the court. Such document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Local Rule 304(d). Failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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DATED: October 9, 2020

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