Dimitruk et al v. Mortgageit, Inc. et al

Filing 20

ORDER TO SHOW CAUSE TO STANLEY BURNETT GRANVILLE AND DISMISSING CASE WITHOUT PREJUDICE. Order to Show Cause Hearing set for 2/28/2013 at 09:00 AM. Show Cause Response due by 2/21/2013. Signed by Magistrate Judge Jacqueline Scott Corley on 2/14/2013. (ahm, COURT STAFF) (Filed on 2/14/2013)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9
10

Northern District of California

United States District Court

11
12
13

DONALD DIMITRUK, et al.,
Plaintiffs,

14
15

v.

Case No.: C-12-04117 JSC
ORDER TO SHOW CAUSE TO
STANLEY BURNETT GRANVILLE
AND DISMISSING CASE WITHOUT
PREJUDICE

16
17
18

MORTGAGEIT, INC., et al.,
Defendants.

19
20

On August 6, 2012, Plaintiffs, who are represented by counsel, filed this home mortgage

21

lawsuit against Defendants Mortgaeit, Inc., Indy Mac Federal Bank, FSB, Indymac Mortgage

22

Services, and Mortgage Electronic Registration System, Inc. (Dkt. No. 1.) An initial Case

23

Management Conference (“CMC”) was scheduled for November 29, 2012. The CMC, however,

24

was moved to December 20, 2012 after Plaintiffs requested a continuance, citing the need for

25

additional time “for out of court mediation proceedings between named plaintiffs and defendant.”

26

(See Dkt. Nos. 9-11.) On December 19, 2012, Plaintiffs again requested a continuance of the CMC,

27

repeating the assertion that additional time was needed “for out of court mediation proceedings

28

between named plaintiffs and defendant.” (Dkt. No. 14.) The Court continued the CMC to January

1

24, 2013. (Dkt. No. 15.) At the January 24, 2013 CMC, one of the Plaintiffs was present, but

2

Plaintiffs’ counsel failed to appear.

3

On January 25, 2013, the Court issued an Order to Show Cause (“OSC”), ordering Plaintiffs

4

to show cause as to (1) why Plaintiffs’ counsel failed to appear at the January 24, 2013 CMC, and

5

(2) why this action should not be dismissed without prejudice due to Plaintiffs’ failure to comply

6

with Federal Rule of Civil Procedure 4(m), which generally requires that a defendant be served

7

within 120 days after the complaint is filed. (See Dkt. No. 17.) The Court set a hearing on the OSC

8

for February 14, 2013 at 9:00 a.m., and required Plaintiffs’ counsel to appear in person. Plaintiffs

9

were further ordered to file a written response to the OSC by February 7, 2013. The Court warned

10

Northern District of California

United States District Court

11

that failure to comply with the OSC may result in dismissal of the lawsuit.
On February 4, 2013, Plaintiffs responded to the OSC, informing the Court “that according to

12

Kate Morgan of Languard America, Inc. who is the representative of [our] attorney Stanley B.

13

Granville he will not appear for the Order to Show Cause unless we paid his time and expense to

14

appear which would be about $2,000.” (See Dkt. No. 18.) Plaintiffs requested that the Court dismiss

15

their case without prejudice. (Id.) On February 14, 2013, Plaintiffs’ counsel failed to appear at the

16

hearing on the OSC or to notify the Court that he would not be appearing.

17

The Court DISMISSES the action without prejudice pursuant to Rule 4(m). In addition, due

18

to Plaintiffs’ counsel’s failure to comply with the Court’s orders and his apparent failure to prosecute

19

his clients’ case, the Court HEREBY ORDERS Plaintiffs’ counsel to show cause as to why he

20

should not be referred to the Court’s Standing Committee on Professional Conduct pursuant to Civil

21

Local Rule 11-6(a)(1).

22

The Court sets a hearing on the Order to Show Cause for February 28, 2013 at 9:00 a.m.

23

Plaintiffs’ counsel must appear in person. Plaintiffs’ counsel is further ordered to file a written

24

response to this Order by February 21, 2013.

25
26

IT IS SO ORDERED.

27
28

2

1

Dated: February 14, 2013
_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

2
3
4
5
6
7
8
9
10

Northern District of California

United States District Court

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3