Mangia Media Inc. et al v. University Pipeline Inc. et al

Filing 39

REFERRAL FOR REASSIGNMENT WITH RECOMMENDATION TO DISMISS FOR FAILURE TO PROSECUTE. Signed by Judge Nathanael M. Cousins on 07/12/2012. (nclc2, COURT STAFF) (Filed on 7/12/2012)

1
2
3

UNITED STATES DISTRICT COURT
4

NORTHERN DISTRICT OF CALIFORNIA
5

SAN FRANCISCO DIVISION
6
7
8

11
12
13

REFERRAL FOR
REASSIGNMENT WITH
RECOMMENDATION TO
DISMISS FOR FAILURE TO
PROSECUTE

Plaintiffs,

9
10

Case No. 12-cv-01142 NC

MANGIA MEDIA, INC., AVCO
INDUSTRIES, INC.,

v.
UNIVERSITY PIPELINE, INC., THOMAS
UNGER,
Defendants.

14
15

In this action for breach of contract and bad faith, plaintiffs have failed to respond

16

to the Court’s order to show cause for failure to prosecute. Because the parties have not

17

consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c), this Court

18

does not have authority to make a dispositive ruling in this case. Accordingly, the Court

19

orders this case to be REASSIGNED to a District Judge.

20

Finding that plaintiffs have failed to respond to Court orders and failed to appear at

21

a case management conference, this Court RECOMMENDS that the District Court

22

dismiss this action under Federal Rule of Civil Procedure 41(b).

23
24

I. BACKGROUND
This action was transferred from the United States District Court, for the Eastern

25

District of New York, to this Court on March 12, 2012. Order Transferring Case, Dkt.

26

No. 29. This Court scheduled a case management conference for June 20, 2012, and

27

ordered the parties to file a joint case management conference statement by June 13,

28

2012. Scheduling Order, Dkt. No. 31. The Court also ordered the parties to consent or
Case No. 12-cv-01142 NC
REFERRAL FOR REASSIGNMENT
WITH REC. DISMISS

1

decline to proceeding before a magistrate judge under 28 U.S.C. § 636. Standing Order,

2

Dkt. No. 31-1. As no case management statement was filed and no party filed a consent

3

or declination to the jurisdiction of a magistrate judge, the Court vacated the June 20 case

4

management conference and issued an order to show cause requiring plaintiffs to file a

5

status report by July 5, 2012. See Order to Show Cause, Dkt. No. 36. The Court warned

6

plaintiffs that failure to comply with the order would result in case dismissal. See id. The

7

Court also continued the case management conference to July 11. Id.

8
9

Plaintiffs have now failed to respond to the order to show cause, failed to appear at
the case management conference, and failed to file a case management statement.

10

II. DISCUSSION

11

An action may be dismissed under Federal Rule of Civil Procedure 41(b) for

12

failure to prosecute or to comply with court orders. See Hells Canyon Preservation

13

Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that a district

14

court may dismiss an action in accordance with Federal Rule of Civil Procedure 41(b) sua

15

sponte for a plaintiff’s failure to prosecute or comply with a court order); see also Ferdik

16

v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (a district court may dismiss an action

17

for failure to comply with any order of the court). In “determining whether to dismiss a

18

case for failure to comply with a court order, the district court must weigh five factors

19

including: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s

20

need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy

21

favoring disposition of cases on their merits; and (5) the availability of less drastic

22

alternatives.” Ferdik, 963 F.2d at 1260-61 (quoting Thompson v. Housing Auth., 782

23

F.2d 829, 831 (9th Cir. 1986)).

24

Here, plaintiffs failed to comply with Court orders and deadlines, failed to respond

25

to the order to show cause, failed to consent or decline to the jurisdiction of a magistrate

26

judge, failed to appear at the July 11 case management conference, and failed to file any

27

case management statement. See Min. Order, Dkt. No. 38. The Court finds that the

28

Ferdik factors weigh in favor of dismissal.
Case No. 12-cv-01142 NC
REFERRAL FOR REASSIGNMENT
WITH REC. DISMISS

2

1

III. CONCLUSION

2

Because plaintiffs have yet to consent to the jurisdiction of a magistrate judge, the

3

Court ORDERS the Clerk of Court to reassign this case to a district court judge. As

4

plaintiffs have failed to prosecute this action and have failed to comply with numerous

5

court orders, this Court RECOMMENDS that the District Court DISMISS the action

6

under Federal Rule of Civil Procedure Rule 41(b). The parties may object to this

7

recommendation within fourteen days of the filing date of this order. FED. R. CIV. P.

8

72(b).

9

IT IS SO ORDERED.
10
11

DATED: July 12, 2012
___________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Case No. 12-cv-01142 NC
REFERRAL FOR REASSIGNMENT
WITH REC. DISMISS

3