Shervin v. City of Newark, California et al

Filing 100

ORDER re 99 Affidavit filed by Amir Shervin, 98 Proposed Order filed by Amir Shervin. Shirin Shervin's claims are not dismissed. (vrwlc1, COURT STAFF) (Filed on 3/10/2009)

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 On February 9, 2009, the court ordered plaintiff Shirin Shervin to show cause why her claims should not be dismissed for failure to prosecute, because she did not enter an appearance at the January 22, 2009 hearing on defendants' motion to dismiss. #95. Doc AMIR SHERVIN and SHIRIN SHERVIN, Plaintiffs, v CITY OF NEWARK, et al, Defendants. / No C 08-1631 VRW ORDER IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Plaintiff filed a response on February 27, 2009, explaining

that she did not appear because she believed her father could represent her at the hearing. Doc #99.

Dismissal under FRCP 41(b) is a harsh penalty that "should be imposed as a sanction only in extreme circumstances." Oliva v Sullivan, 958 F2d 272, 273 (9th Cir 1992). The court

considers many factors before dismissing a plaintiff's claims

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

involuntarily, including the harm resulting from plaintiff's failure to appear and the risk of prejudice to defendants. Dahl v Huntington Beach, 84 F3d 363, 366 (9th Cir 1996). Here, plaintiff explains that she would have attended the hearing had she known she could not be represented by her father. Doc #99 at 4. Any prejudice defendants experienced from See

plaintiff's failure to appear was minor, as defendants' motions to dismiss were granted in their entirety. Doc #95. Plaintiff has

not otherwise failed to prosecute her claims.

Because dismissal

under these circumstances would be an extreme penalty, plaintiff's claims will not be dismissed. Plaintiff is warned, however, that

any subsequent failure to appear may result in dismissal. Plaintiff has also moved for an extension of time to file her response to the order to show cause and for the court to appoint counsel. Doc #98. Because plaintiff has responded

adequately, her motion for an extension of time is DENIED AS MOOT. The court has already explained why plaintiff is not entitled to appointed counsel, Doc #95 at 14, and as plaintiff's circumstances have not changed, her motion for court-appointed counsel is DENIED.

IT IS SO ORDERED.

VAUGHN R WALKER United States District Chief Judge

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