Whitsitt v. Tesla Motors Inc. et al

Filing 94

ORDER OF DISMISSAL. Signed by Judge Maxine M. Chesney on 06/14/17. (mmclc2, COURT STAFF) (Filed on 6/14/2017) (Additional attachment(s) added on 6/14/2017: # 1 Certificate/Proof of Service) (cl, COURT STAFF).

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 WILLIAM J. WHITSITT, Plaintiff, 8 9 10 11 Case No. 16-cv-00797-MMC ORDER OF DISMISSAL v. WEST VALLEY STAFFING GROUP, et al., United States District Court Northern District of California Defendants. 12 13 By order filed May 26, 2017, the Court granted defendant Tesla Motors, Inc.’s 14 (“Tesla”) motion for reconsideration of plaintiff William J. Whitsitt’s (“Whitsitt”) application 15 to proceed in forma pauperis (“IFP”) in the above-titled action. By said order, the Court 16 denied Whitsitt’s IFP application and instructed Whitsitt that, if he wished to proceed with 17 the instant action, he was required to do one of two things, no later than June 9, 2017: (1) 18 pay the filing fee to the Clerk of Court or (2) file a new IFP application that clarified the 19 inconsistencies identified by the Court. The Court also warned Whitsitt that, should he 20 fail to make such payment or submit such filing by June 9, 2017, the Court would dismiss 21 his complaint. 22 23 24 To date, Whitsitt has neither paid the filing fee nor filed a new IFP application. In light thereof, the above-titled action is subject to dismissal. Although, ordinarily, such dismissal would be without prejudice, there is, in this 25 instance, an additional ground for dismissal, which dismissal is with prejudice. In 26 particular, by order filed May 8, 2017, the Court directed Whitsitt to show cause, in writing 27 and no later than May 22, 2017, why sanctions should not be imposed, including 28 dismissal of the action pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, for 1 his failure to appear as ordered at a case management conference on May 5, 2017, as 2 well as his failure to file a joint case management statement in connection with that 3 conference, likewise as ordered. On May 26, 2017, Whitsitt filed an untimely response, 4 to which defendants Tesla and West Valley Staffing Group (“West Valley”) have filed 5 objections. 6 First, as West Valley points out, Whitsitt offered no explanation for his delay in 7 responding. Second, and more importantly, the explanation he provides as to his failure 8 to appear at the conference is not persuasive. In that regard, Whitsitt states he 9 “assume[d]” the conference would be continued because, in his view, Tesla’s motion to reconsider his IFP application constituted a jurisdictional challenge that needed to be 11 United States District Court Northern District of California 10 resolved prior to the conference. (See Answer to Order to Show Cause, filed May 26, 12 2017, at 2:13-14.) Whitsitt offers no authority in support of such unilateral assumption, 13 which, in any event, he made no effort to confirm with counsel for the opposing parties, 14 let alone the Court. Indeed, it was clear that the conference would proceed on May 5, 15 2017, as scheduled. Prior to that date, counsel for both defendants made multiple 16 attempts, both orally and in writing, to contact Whitsitt for the purpose of drafting the 17 required joint case management statement, neither of whom received a response. 18 Moreover, as noted by both Tesla and West Valley, this is not the first time Whitsitt 19 has failed to comply with court orders. In particular, Whitsitt failed to appear as ordered 20 at an earlier case management conference and to file in connection therewith a joint case 21 management statement,1 failed to comply with an order directing him to provide a 22 chambers copy of his complaint, failed to respond to several notices directing him to state 23 whether he did or did not consent to the jurisdiction of the magistrate judge to whom the 24 1 25 26 27 28 The earlier failure to appear was followed by an order to show cause and subsequent dismissal when Whitsitt failed to timely respond. Whitsitt then filed an untimely response, after which the Court, despite deficiencies in “the chronology of events assertedly affecting [Whitsitt’s] ability to comply with the Court’s orders,” accepted Whitsitt’s explanation and set aside the dismissal. (See Order, filed April 4, 2017, at 1:23-24.) In light of the Court’s findings herein, Tesla’s pending motion for reconsideration of that order is hereby DENIED as moot. 2 1 matter initially was assigned, repeatedly failed to follow the Court’s directives to submit 2 his filings in a form complying with the Civil Local Rules of this District, and repeatedly 3 failed to file documents in a timely manner. 4 5 6 7 The sum of Whitsitt’s numerous failures to proceed in accordance with the Court’s orders and, indeed, to proceed at all, warrants dismissal under Rule 41(b). Accordingly, for all of the reasons set forth above, the above-titled action is hereby DISMISSED. 8 9 IT IS SO ORDERED. 10 United States District Court Northern District of California 11 Dated: June 14, 2017 MAXINE M. CHESNEY United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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