Smith et al v. Ygrene Energy Fund, Inc. et al

Filing 79

Amended ORDER: The attached amended order is identical to the order at ECF No. 78 except it deletes the reference to the separate judgment in the conclusion and attaches the court's January 25, 2018 order. (Attachments: # 1 Prior Order)(lblc3S, COURT STAFF) (Filed on 2/9/2018)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division United States District Court Northern District of California 11 GEORGE W. WOOLLEY, et al., Case No. 17-cv-01258-LB Plaintiffs, 12 AMENDED ORDER DISMISSING PARTY v. 13 14 YGRENE ENERGY FUND, INC., et al., 15 Defendants. Re: ECF No. 73 16 17 INTRODUCTION 18 Plaintiff Michael G. Pekel has not responded to the court’s order requiring him to appear in 19 person or by counsel and show cause why the court should not dismiss his case for failure to 20 prosecute it.1 He did not appear at the show-cause hearing on February 8, 2018.2 The court now 21 dismisses his case for his failure to prosecute it. 22 23 STATEMENT 24 Plaintiffs’ counsel has been unable to contact Mr. Pekel since September 2017.3 On September 25 27, 2017, Plaintiffs’ counsel Manuel Hiraldo sent an email to Mr. Pekel to schedule his deposition, 26 1 27 28 Order – ECF No. 73. 2 Minute Entry – ECF No. 77. 3 Motion to Withdraw – ECF No. 69 at 3. AMENDED ORDER – No. 17-cv-01258-LB 1 and Mr. Pekel responded that he was available during the proposed date and time.4 On October 4, 2 2017, Mr. Hiraldo “emailed a copy of the notice of deposition to Mr. Pekel” and asked him to 3 confirm receipt.5 Mr. Pekel did not respond.6 Mr. Hiraldo followed up with Mr. Pekel via email, 4 cell phone, and text message between October 9 and October 27, 2017.7 On November 2, 2017, 5 Mr. Hiraldo sent a letter and e-mail to Mr. Pekel “regarding whether he wished to continue 6 perusing his claims, and [Mr. Hiraldo’s] intent to terminate [the] attorney-client relationship if he 7 did not respond.”8 Mr. Pekel did not respond.9 At the motion-to-dismiss hearing on November 2, 2017, plaintiffs’ counsel first raised their 8 communication issues with Mr. Pekel.10 The court also discussed the issue with the parties at the 10 case-management conference on December 14, 2017.11 The court set a further case-management 11 United States District Court Northern District of California 9 conference for January 18, 2018, where counsel discussed their continued efforts to contact Mr. 12 Pekel. 13 On January 9, 2018, plaintiffs’ counsel moved to withdraw as counsel for Mr. Pekel.12 14 Plaintiffs’ counsel served Mr. Pekel with a copy of the motion.13 The court held a hearing on 15 January 18, 2018.14 Mr. Pekel did not appear. The court granted the motion and ordered Mr. Pekel 16 to appear in person or through counsel on February 8, 2018 to show why his case should not be 17 18 19 20 4 Hiraldo Decl. – ECF No. 69-1 at 2 (¶ 2). 21 5 Id. (¶ 4). 22 6 Id. (¶ 5). 7 Id. (¶¶ 5–7). 8 Id. (¶ 8). 24 9 Id. 25 10 Joint Case Management Statement – ECF No. 59 at 7. 11 Joint Case Management Statement – ECF No. 71 at 2. 12 Motion to Withdraw – ECF No. 69 at 1. 27 13 Id. at 5; Hiraldo Decl. – ECF No. 69-1 at 2 (¶ 8). 28 14 Minute Entry – ECF No. 72. 23 26 AMENDED ORDER – No. 17-cv-01258-LB 2 1 dismissed for his failure to prosecute it.15 Plaintiffs’ counsel served Mr. Pekel with a copy of the 2 order.16 On February 8, 2018, the court held the show-cause hearing.17 Mr. Pekel did not appear. 3 4 5 ANALYSIS The court’s January 25, 2018 order18 described what the rules require of Mr. Pekel, including 6 7 that failure to prosecute the case may result in both monetary and terminating sanctions.19 The 8 court incorporates that order by this reference and attaches it as an exhibit. Mr. Pekel became 9 unreachable and stopped communicating with his lawyers.20 The court warned Mr. Pekel about the consequences of not appearing at the order to show cause hearing.21 Mr. Pekel’s former counsel 11 United States District Court Northern District of California 10 served him with notice of the hearing.22 Still, Mr. Pekel did not appear. On this record, and for the reasons described in the January 25 order, the court dismisses Mr. 12 13 Pekel’s case. Mr. Pekel has failed to prosecute his case. The court warned him that if he did not 14 appear, the court would dismiss the case for failure to prosecute it. Mr. Pekel has not shown cause 15 for his lack of participation and diligence. Under the circumstances, the court declines to impose monetary sanctions. 16 17 18 19 20 21 22 15 Order – ECF No. 73. 16 Certificate of Service – ECF No. 76. 24 17 Minute Entry – No. 77. 25 18 Order – ECF No. 73. 19 Id. at 4–7. 20 Hiraldo Decl. – ECF No. 69-1 at 2 (¶ 4–8). 27 21 Order – ECF No. 73 at 4–7. 28 22 Certificate of Service – ECF No. 76. 23 26 AMENDED ORDER – No. 17-cv-01258-LB 3 1 CONCLUSION 2 The court dismisses Mr. Pekel’s case with prejudice for his failure to prosecute it. The court 3 directs plaintiffs’ counsel to serve Mr. Pekel with a copy of this order and to file proof of service 4 by February 22, 2018. 5 IT IS SO ORDERED. 6 Dated: February 9, 2018 ______________________________________ LAUREL BEELER United States Magistrate Judge 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AMENDED ORDER – No. 17-cv-01258-LB 4

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