(PS) Nieto v. JP Morgan Chase Bank, N.A. et al

Filing 29

ORDER signed by Magistrate Judge Edmund F. Brennan on 9/8/2020 VACATING 25 Findings and Recommendations; DISCHARGING the 24 Order to Show Cause; and SETTING a Status (Pre-trial Scheduling) Conference for 10/15/2020 at 10:00 AM in Courtroom 8 (EFB) before Magistrate Judge Edmund F. Brennan. (Coll, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESSE NIETO, JR.,

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No. 2:20-cv-0422-JAM-EFB PS

Plaintiff,
v.

ORDER

JP MORGAN CHASE BANK, N.A., et al.,
Defendants.

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The court previously issued an order setting an initial scheduling conference for August

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12, 2020, and directed the parties to file status report by no later than July 29, 2020. ECF No. 2.

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Defendant U.S. Bank Trust, N.A., As Trustee For LSF9 Master Participation Trust (“LSF9”)

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timely filed a status report (ECF No. 23), but plaintiff failed to separately file his own status

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report. Accordingly, the status conference was continued, and plaintiff was ordered to file a

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status report by August 12, 2020. ECF No. 24. He was warned that failure to do so could result

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in dismissal of this case. Id. On August 19, 2020, after plaintiff had failed to comply with the

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aforementioned order, the court recommended that this action be dismissed for failure to

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prosecute and comply with court orders. ECF No. 25. Two weeks later, on September 2, 2020,

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plaintiff filed objections to findings and recommendations, as well as a status report. ECF Nos.

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26 & 27. He also filed a response to the court’s July 30, 2020 order to show cause, in which he

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explains that he failed to timely file a status report due to illness. ECF No. 28.
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There is no question, in light of the foregoing background, that plaintiff’s status report is

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untimely. Nevertheless, the court must weigh plaintiff’s obvious failure to adhere to this court’s

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deadlines against the Ninth Circuit’s position that “a case should, whenever possible, be decided

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on the merits.” Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984). Given plaintiff’s representation

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that he was ill, and that he has since filed s status report, the court finds that dismissal of this

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action is not appropriate. Accordingly, the court will: (1) vacate the recommendation that this

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case be dismissed for failure to prosecute and comply with court orders; and (2) reset the

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previously vacated scheduling conference.

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Accordingly, it is ORDERED that:

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1. The August 19, 2020 findings and recommendations (ECF No. 25) are VACATED;

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2. The July 30, 2020 order to show cause is discharged, and no sanctions are imposed;

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and
3. A Status (Pretrial Scheduling) Conference is set for October 15, 2020 at 10:00 a.m., in

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Courtroom No. 8

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DATED: September 8, 2020.

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