Ferguson v. Horizon Lines, Inc. et al

Filing 47

ORDER REOPENING CASE AND SETTING SERVICE DEADLINE. Signed by Judge Maria-Elena James on 12/17/2012. (cdnS, COURT STAFF) (Filed on 12/17/2012)

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UNITED STATES DISTRICT COURT

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Northern District of California

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LORRAINE FERGUSON,
No. CV11-3391 MEJ

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Plaintiff,
v.

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ORDER RE-OPENING CASE AS TO
DEFENDANT ANDREW TRETYAK

HORIZON LINES, INC., et al.,
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For the Northern District of California

UNITED STATES DISTRICT COURT

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Defendants.
_____________________________________/
On November 14, 2012, the Court granted Defendant Horizon Lines, Inc.’s Motion for

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Summary Judgment against Plaintiff Lorraine Ferguson. Dkt. No. 41. As Andrew A. Tretyak was

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the sole remaining Defendant and there was no indication that he had been served with the

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Complaint, the Court ordered Plaintiff to show cause why her case against Tretyak should not be

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dismissed for failure to prosecute. Dkt. 42. The Court ordered Plaintiff to file a declaration by

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November 28, 2012, or, in the alternative, file a voluntary dismissal by November 28. As Plaintiff

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failed to respond, the Court dismissed Plaintiff’s Complaint and terminated the case. Dkt. No. 44.

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Now before the Court is Plaintiff’s Motion to Set Aside Dismissal and Response to Order to

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Show Cause. Dkt. No. 45. In her Motion, Plaintiff’s counsel states that: “We received the order on

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the motion for summary judgment, but somehow I never received separately the order to show cause

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(or never opened it). If I did, I would have responded . . . . Had I responded I would have detailed

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the actions we have taken to serve the defendant Andrei Tretyak.” Mot. at 2. As to service on

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Tretyak, counsel states that “we have had it out for service for over a year and a half from the time

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we filed the complaint. We asked the defendant for Tretyak’s address . . . and only received a

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telephone number. I spoke with Tretyak once and he told me to send the complaint to a P.O. Box,

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and I send [sic] a Notice and Acknowledgment of Receipt . . . and it was never returned.” Id.

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Counsel further states that they have subpoenaed the records of the union, contacted the DMV, sent

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an investigator to find him, and took the deposition of Tretyak’s ex-wife, all in an effort to properly

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serve him. Id. Plaintiff requests that the Court grant her until March 30, 2013 in which to serve

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Tretyak, stating that “[w]e do have some insight to some various individuals that know where he

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goes to eat and drink.” Id. at 3.

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Although it is unclear how Plaintiff intends to effect service despite having failed in her

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attempts for over a year, the Court finds good cause exists to permit Plaintiff a final opportunity to

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complete service of process on Tretyak. Accordingly, the Court hereby RE-OPENS this case as to

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Defendant Andrei Tretyak. Plaintiff shall complete service of process by March 29, 2013. Failure

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IT IS SO ORDERED.

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For the Northern District of California

UNITED STATES DISTRICT COURT

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to comply with this Order shall result in dismissal with prejudice.

Dated: December 17, 2012

_______________________________
Maria-Elena James
Chief United States Magistrate Judge

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