Whitaker v. S & R Drywall, Incorporated et al

Filing 22

FURTHER ORDER TO SHOW CAUSE. Show Cause Response due by 5/16/2022. Signed by Magistrate Judge Sallie Kim on 5/6/022. (mkl, COURT STAFF) (Filed on 5/6/2022)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRIAN WHITAKER, Plaintiff, 8 9 10 11 Case No. 21-cv-03099-SK FURTHER ORDER TO SHOW CAUSE v. S & R DRYWALL, INCORPORATED, et al., United States District Court Northern District of California Defendants. 12 13 As the Court previously noted in the first Order to Show Cause (“OSC”) issued in this case 14 on November 29, 2021, the last day for Plaintiff to file a Notice of Need for Mediation as to 15 Defendant E Plus Studio Incorporated under the scheduling order was August 30, 2021, almost 16 three months before the first OSC was issued. (Dkt. Nos. 5, 13.) In response, Plaintiff’s counsel 17 filed a declaration stating that Defendant E Plus Studio Inc. was served on May 20, 2021, and 18 Defendant S & R Drywall Inc. was served on May 27, 2021. (Dkt. No. 16, ¶¶ 4, 6.) E Plus Studio 19 filed an answer on May 27, 2021, and S & R Drywall has not yet made an appearance. (Dkt. No. 20 9.) Plaintiff’s counsel stated that the case had been left off their list of cases needing a Joint Site 21 Inspection due to a calendaring error and that counsel was currently attempting to schedule a Joint 22 Site Inspection. (Dkt. No. 16, ¶ 9.) Counsel stated they would file a stipulation to extend the 23 deadline once they heard back from Defense counsel. (Id.) 24 The Court discharged the OSC but reminded Plaintiff of his obligation to diligently 25 prosecute this case and set a deadline of January 3, 2022, for Plaintiff to file a request to extend 26 the deadline to conduct a joint site inspection with Defendant E Plus Studio and to move to enter 27 default against S & R Drywall. (Dkt. No. 18.) 28 On December 14, 2021, Plaintiff moved to enter default against S & R Drywall, which was 1 entered on December 21, 2021. (Dkt. Nos. 20, 21.) To date, Plaintiff has not filed a motion for 2 default judgment, despite the fact that default was entered over four months ago. Nor has Plaintiff 3 filed a request to extend the deadline to conduct a joint site inspection with Defendant E Plus 4 Studio. Additionally, the Court notes that Plaintiff’s service of S & R Drywall may be deficient 5 because it is not clear whether previous service attempts were made before the purported substitute 6 service. The proof of service did not include a declaration of due diligence. (Dkt. No. 14.) 7 The Court notes that it has repeatedly issued Orders to Show Cause (“OSC”) to Plaintiff’s 8 Counsel’s law firm based on Plaintiff’s Counsel’s failure to diligently prosecute, repeatedly 9 sanctioned attorneys at the Plaintiff’s Counsel’s law firm, and referred two individual attorneys with Plaintiff’s Counsel’s law firm to the Northern District of California’s Standing Committee on 11 United States District Court Northern District of California 10 Professional Conduct. Despite repeated apologies and promises to calendar deadlines, the Court 12 notes that attorneys with the Plaintiff’s Counsel’s law firm continue to fail to diligently prosecute 13 their cases. Plaintiff’s Counsel’s is responsible for prosecution of this case in a diligent manner. 14 Accordingly, Plaintiff is HEREBY ORDERED to Show Cause in writing by no later than 15 May 16, 2022, why this case should not be dismissed for failure to prosecute pursuant to Federal 16 Rule of Civil Procedure 41(b) and why Counsel should not be personally sanctioned in the amount 17 of $1,000. Additionally, Plaintiff is admonished that, if he fails to file a response to this OSC by 18 May 16, 2022, the Court will reassign this matter and issue a report and recommendation that this 19 matter be dismissed for failure to prosecute and will sanction Plaintiff’s Counsel without any 20 further notice. 21 22 23 24 IT IS SO ORDERED. Dated: May 6, 2022 ______________________________________ SALLIE KIM United States Magistrate Judge 25 26 27 28 2

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