Love et al v. Elco Administrative Services/Enterprise Rent A Car et al

Filing 31

ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE AND FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES: Granting 24 defendant's motion to dismiss this action without prejudice. (SI, COURT STAFF) (Filed on 2/2/2009) (Additional attachment(s) added on 2/4/2009: # 1 cs) (ys, COURT STAFF).

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1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. ELCO ADMINISTRATIVE SERVICES, et al, Defendants. / RODNEY LOVE et al, Plaintiffs, No. C 08-00223 SI ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE AND FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Plaintiff filed this complaint in the Alameda County small claims court on October 26, 2007. The complaint sought $4,000 in damages incurred in an auto collision with Claudia Noble-Livingston. The United States has submitted a certification by the Chief of the Civil Division stating that Ms. NobleLivingston was acting in the scope of her federal employment at the time of the collision. On the basis of that certification, the United States asserted jurisdiction under the Federal Tort Claims Act, 28 U.S.C. 1346(b), substituted in as defendant, and removed the case to district court on January 14, 2008. Since removal of the case, plaintiffs Rodney Love and Rosie Lee Venson have made no appearances before this Court. On April 23, 2008, Magistrate Judge Maria-Elena James issued an Order to Show Cause as to why the case should not be dismissed for failure to prosecute. Plaintiffs failed to respond to that Order or appear at the May 15, 2008 Order to Show Cause hearing. Accordingly, on October 30, 2008, Magistrate Judge James recommended that this Court dismiss the case for failure to prosecute. On December 19, 2008, the United States filed a motion to dismiss, which plaintiffs have not opposed. Based on this record, the Court finds it appropriate to dismiss this action for failure to prosecute. In addition, the Court finds dismissal is warranted because plaintiffs have not exhausted administrative remedies as required by the Federal Tort Claims Act. 28 U.S.C. 1346(b), 2679(d). 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The United States has submitted the declaration of John A. Carlo, the Director of the Division of Contracts and Claims of the Social Security Administration where Ms. Noble-Livingston worked, which states that plaintiffs have not filed any administrative claims with the Administration. Based on this record, the Court finds it appropriate to dismiss this action for failure to exhaust administrative remedies. Accordingly, the Court ADOPTS the Report and Recommendation of Magistrate Judge James (Docket No. 22), GRANTS defendant's Motion to Dismiss (Docket No. 24), and DISMISSES this action without prejudice. The Court therefore VACATES the February 6, 2009 hearing. IT IS SO ORDERED. Dated: February 2, 2009 SUSAN ILLSTON United States District Judge 2

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