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)

Download PDF
1 2 3 4 5 UNITED STATES DISTRICT COURT 6 Northern District of California 7 8 LORRAINE FERGUSON, No. CV11-3391 MEJ 9 Plaintiff, v. 10 ORDER RE-OPENING CASE AS TO DEFENDANT ANDREW TRETYAK HORIZON LINES, INC., et al., 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 Defendants. _____________________________________/ On November 14, 2012, the Court granted Defendant Horizon Lines, Inc.’s Motion for 14 Summary Judgment against Plaintiff Lorraine Ferguson. Dkt. No. 41. As Andrew A. Tretyak was 15 the sole remaining Defendant and there was no indication that he had been served with the 16 Complaint, the Court ordered Plaintiff to show cause why her case against Tretyak should not be 17 dismissed for failure to prosecute. Dkt. 42. The Court ordered Plaintiff to file a declaration by 18 November 28, 2012, or, in the alternative, file a voluntary dismissal by November 28. As Plaintiff 19 failed to respond, the Court dismissed Plaintiff’s Complaint and terminated the case. Dkt. No. 44. 20 Now before the Court is Plaintiff’s Motion to Set Aside Dismissal and Response to Order to 21 Show Cause. Dkt. No. 45. In her Motion, Plaintiff’s counsel states that: “We received the order on 22 the motion for summary judgment, but somehow I never received separately the order to show cause 23 (or never opened it). If I did, I would have responded . . . . Had I responded I would have detailed 24 the actions we have taken to serve the defendant Andrei Tretyak.” Mot. at 2. As to service on 25 Tretyak, counsel states that “we have had it out for service for over a year and a half from the time 26 we filed the complaint. We asked the defendant for Tretyak’s address . . . and only received a 27 telephone number. I spoke with Tretyak once and he told me to send the complaint to a P.O. Box, 28 and I send [sic] a Notice and Acknowledgment of Receipt . . . and it was never returned.” Id. 1 Counsel further states that they have subpoenaed the records of the union, contacted the DMV, sent 2 an investigator to find him, and took the deposition of Tretyak’s ex-wife, all in an effort to properly 3 serve him. Id. Plaintiff requests that the Court grant her until March 30, 2013 in which to serve 4 Tretyak, stating that “[w]e do have some insight to some various individuals that know where he 5 goes to eat and drink.” Id. at 3. 6 Although it is unclear how Plaintiff intends to effect service despite having failed in her 7 attempts for over a year, the Court finds good cause exists to permit Plaintiff a final opportunity to 8 complete service of process on Tretyak. Accordingly, the Court hereby RE-OPENS this case as to 9 Defendant Andrei Tretyak. Plaintiff shall complete service of process by March 29, 2013. Failure 10 IT IS SO ORDERED. 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 to comply with this Order shall result in dismissal with prejudice. Dated: December 17, 2012 _______________________________ Maria-Elena James Chief United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?