Ross v. Hetticher et al

Filing 20

ORDER by Judge Saundra Brown Armstrong VACATING the Order to Show Cause. Matter Referred to Early Mandatory Settlement Conference. Case Management Conference set for 10/7/2009 02:45 PM. VIA TELEPHONE. Signed by Judge ARMSTRONG on 7/14/09. (lrc, COURT STAFF) (Filed on 7/15/2009) Modified on 7/16/2009 (jlm, COURT STAFF).

1 2 3 4 5 6 7 8 RONALD LEE ROSS, Plaintiff, vs. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION Case No: C 08-4534 SBA ORDER VACATING OSC, RESCHEDULING CASE MANAGEMENT CONFERENCE AND REFERRING MATTER FOR AN EARLY MANDATORY SETTLEMENT CONFERENCE

MR. MIKE HETTICHER, Local President, 9 American Postal Workers Union, Local 1056, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant.

On June 1, 2009, this Court issued an Order to Show Cause ("OSC") why this case should not be dismissed due to (1) Plaintiff's failure to set up a telephonic Case Management Conference for May 27, 2009 at 3:30 p.m. as ordered and (2) his apparent failure to effect service consistent with Federal Rule of Civil Procedure 4(m), which requires that service of process be effectuated on the Defendant within 120 days after the filing of the complaint. Plaintiff's response to the OSC states that he, in fact, had arranged for the conference call but that Defendant (who like Plaintiff, also appears to be pro se) claimed he was not available. In addition, Plaintiff claims that he mailed the complaint and summons to the Defendant. The Court is satisfied, based on Plaintiff's submission, that his failure to properly set up the conference call for the Case Management Conference was the result of excusable neglect. The record also indicates that Plaintiff has attempted to serve Defendant with the complaint and has made an effort to notify him of this action.1 However, Plaintiff has not filed a proof of service with the Court. Federal Rule of Civil Procedure 4(l) provides that "[u]nless service is waived, proof of service must be made to the court." Therefore, Plaintiff must immediately file a proof of service in

The Court makes no finding as to whether Plaintiff's purported service of the summons and complaint complies with the applicable rules of procedure.
1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

a manner consistent with the requirements of Rule 4.2 Plaintiff should be aware that although he is representing himself in this action, he is expected to comply with all applicable procedural rules. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Plaintiff is warned that the failure to comply with the orders and rules of this Court may be considered grounds for dismissal of the action, with prejudice. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). Accordingly, IT IS HEREBY ORDERED THAT: 1. The OSC issued on June 1, 2009 (Docket 17) and the court appearance on the OSC

previously scheduled for July 15, 2009 are VACATED. 2. The parties shall appear by telephone for a Case Management Conference on

Wednesday October 7, 2009 at 2:45 p.m. The parties shall meet and confer prior to the conference and shall prepare a joint Case Management Conference Statement which shall be filed no later than ten (10) days prior to the Case Management Conference that complies with the Standing Order for All Judges of the Northern District of California and the Standing Order of this Court. Plaintiff shall be responsible for filing the statement as well as for arranging the conference call. All parties shall be on the line and shall call [phone] at the above indicated date and time. 3. The instant action is referred to Magistrate Judge Maria Elena James for an early

mandatory settlement conference. Magistrate Judge James will notify the parties regarding the date and time of the settlement conference. The parties are directed to comply with all instructions issued by Magistrate Judge James. The failure to do so may result in the imposition of sanctions, up to and including the dismissal of the action or the entry of a default judgment, depending on the nature and circumstances of the violation. IT IS SO ORDERED. Dated: July 14, 2009 ____________________________ Hon. Saundra Brown Armstrong United States District Judge

The Court also notes that Plaintiff failed to file the required certification of ADR procedures (Docket 2), and therefore, he must do so immediately.
2

-2-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ROSS et al, Plaintiff, v. HETTICHER et al, Defendant. / Case Number: CV08-04534 SBA CERTIFICATE OF SERVICE I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on July 15, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Ronald Lee Ross 725 Walnut Drive Rio Dell, CA 95562 Dated: July 15, 2009 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

-3-