Smith v. Hoffman

Filing 34

SECOND ORDER (1) DIRECTING PLAINTIFF TO SHOW CAUSE WHY THE CASE SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE AND (2) CONTINUING THE INITIAL CASE MANAGEMENT CONFERENCE: Show Cause Response due by 7/2/2015. Case Management Conference set for 9/10/2015 at 11:00 AM in Courtroom C, 15th Floor, San Francisco. Signed by Magistrate Judge Laurel Beeler on 6/29/2015. (lsS, COURT STAFF) (Filed on 6/29/2015)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
THOMAS E. SMITH,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. 3:14-cv-01741 LB
Plaintiff,

v.
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BRAD HOFFMAN, et al.,
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Defendants.
_____________________________________/

SECOND ORDER (1) DIRECTING
PLAINTIFF TO SHOW CAUSE WHY
THE CASE SHOULD NOT BE
DISMISSED FOR FAILURE TO
PROSECUTE AND (2) CONTINUING
THE INITIAL CASE MANAGEMENT
CONFERENCE

Thomas Smith filed this action on April 16, 2014. (Complaint, ECF No. 1.) It was initially

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assigned to Judge Ryu. Mr. Smith purportedly served the defendant Sonoma County Human

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Services Department/Family Youth and Children’s Services, as well as the six individual

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defendants, on August 21, 2014. (Certificates fo Service, ECF No. 10-16.)

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The defendants have neither appeared nor answered or otherwise responded to the Complaint.

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Instead, in his September 14, 2014 case-management-conference statement, Mr. Smith explained

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that “[b]y letter dated September 9, 2014, counsel for County of Sonoma, Terry Sterling of the firm

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Spaulding, McCullough & Tansil acknowledged receipt of the service documents, but advised that

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the proper agent for service had not been served as to the County and as to the individual

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defendants.” (CMC Statement, ECF No. 18 at 2.) Mr. Smith also said that Mr. Sterling’s letter “also

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indicates that the defense counsel requests that Plaintiff agree not to take defaults of any defendants

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while the parties work out a stipulation regarding the amendment of the complaint such that the all

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defendants would be in a position to respond to the first amended complaint which, once filed,

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defense counsel would be in a position to accept service thereof.” (Id. at 2-3.) Mr. Smith then

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requested that the court continue the September 17, 2014 case management conference for 60 days

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while the parties worked this out. (Id. at 3.)

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Judge Ryu continued the case-management conference to November 5, 2014, presumably to

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allow the parties to do what they said they were going to do. The action was then reassigned to the

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undersigned because it is related to another one of the undersigned’s actions. (Order Relating Cases,

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ECF No. 22.) After that, the court continued the case-management conference three more times

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because the parties appear to have done nothing and never filed any joint case management

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conference statements. (See Clerk’s Notices, ECF Nos. 24-26.)

show cause why the case should not be dismissed for failure to prosecute. (First OSC, ECF No. 27.)

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For the Northern District of California

Because of the apparent lack of movement, on March 9, 2015, this court ordered Mr. Smith to

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UNITED STATES DISTRICT COURT

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The court did so because, although the action was filed on April 16, 2014, Mr. Smith still had not

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served the defendants with the complaint and summons.

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On March 10, 2015, Mr. Smith’s counsel responded to the order to show cause. (Response to

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First OSC, ECF Nos. 28, 29.) He explained that he has been facing some personal difficulties of late

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and that his paralegal, who knows much about this action, has been dealing with a medical problem

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for the last few months. These things prevented him from drafting, filing, and serving a first

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amended complaint. He also said that the defendants’ counsel had no objection to the delay in

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service.

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Based on Mr. Smith’s counsel’s representations, the court discharged its order to show cause and

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directed him to file and serve a first amended complaint by April 27, 2015. (3/19/2015 Order, ECF

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No. 32.)

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On April 13, 2015, the court’s courtroom deputy received an email from Kristen O’Hagan, who

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apparently works with Mr. Smith’s counsel. She says that there had been a medical emergency in

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Mr. Smith’s counsel’s family and he must travel to the east coast. On Mr. Smith’s counsel’s behalf,

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she asked the court to extend the deadline for filing and serving the First Amended Complaint by 30

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days. She also asks that the April 23, 2015 case management conference be continued by 30 days as

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well.

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The court granted the request. (4/16/2015 Order, ECF No. 33.) The court ordered Mr. Smith

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shall file and serve the First Amended Complaint by June 1, 2015 and continued the April 23, 2015

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case management conference to July 2, 2015.

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It now is June 29, 2015, and neither a First Amended Complaint nor a case management

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conference statement has been filed. By July 2, 2015, Mr. Smith shall explain, in writing, why he did

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not file a First Amended Complaint by the court’s June 1, 2015 deadline and why this action should

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not be dismissed for his failure to prosecute it. In light of this order, the court also continues the case

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management conference from July 2, 2015 to September 10, 2015 at 11:00 a.m.

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IT IS SO ORDERED.
Dated: June 29, 2015
_______________________________
LAUREL BEELER
United States Magistrate Judge

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For the Northern District of California

UNITED STATES DISTRICT COURT

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