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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BRIAN WHITAKER,
Plaintiff,

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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.
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As the Court previously noted in the first Order to Show Cause (“OSC”) issued in this case

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on November 29, 2021, the last day for Plaintiff to file a Notice of Need for Mediation as to

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Defendant E Plus Studio Incorporated under the scheduling order was August 30, 2021, almost

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three months before the first OSC was issued. (Dkt. Nos. 5, 13.) In response, Plaintiff’s counsel

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filed a declaration stating that Defendant E Plus Studio Inc. was served on May 20, 2021, and

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Defendant S & R Drywall Inc. was served on May 27, 2021. (Dkt. No. 16, ¶¶ 4, 6.) E Plus Studio

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filed an answer on May 27, 2021, and S & R Drywall has not yet made an appearance. (Dkt. No.

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9.) Plaintiff’s counsel stated that the case had been left off their list of cases needing a Joint Site

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Inspection due to a calendaring error and that counsel was currently attempting to schedule a Joint

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Site Inspection. (Dkt. No. 16, ¶ 9.) Counsel stated they would file a stipulation to extend the

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deadline once they heard back from Defense counsel. (Id.)

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The Court discharged the OSC but reminded Plaintiff of his obligation to diligently

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prosecute this case and set a deadline of January 3, 2022, for Plaintiff to file a request to extend

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the deadline to conduct a joint site inspection with Defendant E Plus Studio and to move to enter

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default against S & R Drywall. (Dkt. No. 18.)

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On December 14, 2021, Plaintiff moved to enter default against S & R Drywall, which was

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entered on December 21, 2021. (Dkt. Nos. 20, 21.) To date, Plaintiff has not filed a motion for

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default judgment, despite the fact that default was entered over four months ago. Nor has Plaintiff

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filed a request to extend the deadline to conduct a joint site inspection with Defendant E Plus

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Studio. Additionally, the Court notes that Plaintiff’s service of S & R Drywall may be deficient

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because it is not clear whether previous service attempts were made before the purported substitute

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service. The proof of service did not include a declaration of due diligence. (Dkt. No. 14.)

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The Court notes that it has repeatedly issued Orders to Show Cause (“OSC”) to Plaintiff’s

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Counsel’s law firm based on Plaintiff’s Counsel’s failure to diligently prosecute, repeatedly

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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

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United States District Court
Northern District of California

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Professional Conduct. Despite repeated apologies and promises to calendar deadlines, the Court

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notes that attorneys with the Plaintiff’s Counsel’s law firm continue to fail to diligently prosecute

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their cases. Plaintiff’s Counsel’s is responsible for prosecution of this case in a diligent manner.

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Accordingly, Plaintiff is HEREBY ORDERED to Show Cause in writing by no later than

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May 16, 2022, why this case should not be dismissed for failure to prosecute pursuant to Federal

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Rule of Civil Procedure 41(b) and why Counsel should not be personally sanctioned in the amount

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of $1,000. Additionally, Plaintiff is admonished that, if he fails to file a response to this OSC by

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May 16, 2022, the Court will reassign this matter and issue a report and recommendation that this

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matter be dismissed for failure to prosecute and will sanction Plaintiff’s Counsel without any

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further notice.

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IT IS SO ORDERED.
Dated: May 6, 2022
______________________________________
SALLIE KIM
United States Magistrate Judge

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