Shieh v. Mortgage Electronic Registration Systems Inc. et al

Filing 16

ORDER OF DISMISSAL, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 7/8/11. (Attachments: # 1 Certificate of Service)(nah, COURT STAFF) (Filed on 7/8/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARILU SHIEH,
Plaintiff(s),

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ORDER OF DISMISSAL

MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS INC., et al.,

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For the Northern District of California

United States District Court

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v.

No. C 11-0106 PJH

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Defendant(s).
_______________________________/

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On January 10, 2011 the complaint in this matter was filed and a summons was
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issued for the three defendants. Plaintiff appeared at the April 21, 2011 case management
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conference and was advised that she had only about 20 days left to serve the defendants.
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She requested additional time to find counsel to represent her and to serve the defendants.
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Plaintiff’s request was granted and she was afforded 60 additional days to serve the
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defendants and to retain counsel. She was further ordered to appear in person or through
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counsel at the continued conference on June 23, 2011. Plaintiff did not appear as ordered
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on June 23, 2011, and no proof of service of any defendant had been filed.
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Accordingly, an ORDER TO SHOW CAUSE (“OSC”) was issued, ordering plaintiff to
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show cause why her complaint should not be dismissed for failure to prosecute, pursuant to
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Rule 41(b) or for failure to serve pursuant to Rule 4(m) of the Federal Rules of Civil
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Procedure. A hearing was scheduled for the OSC for July 7, 2011, and plaintiff was
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warned that if she failed to appear again or failed to show good cause for her last absence,
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or if no proof of service of the complaint was filed, the complaint would be dismissed. On
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July 7, 2011, plaintiff failed to appear at the hearing on the OSC, failed to submit any
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response in writing, and failed to file any proof of service of the complaint.

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The court having considered the five factors set forth in Malone v. United States

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Postal Service, 833 F.2d 128, 130 (9th Cir. 1987), and having determined that

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notwithstanding the public policy favoring the disposition of actions on their merits, the

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court's need to manage its docket and the public interest in the expeditious resolution of the

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litigation require dismissal of this action. In view of plaintiff's lack of response to this court's

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prior order(s), and her failure to appear not once, but twice as ordered, the court finds there

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is no appropriate less drastic sanction. Accordingly, this action is dismissed with prejudice

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pursuant to Fed. R. Civ. P. 41(b) for plaintiff's failure to prosecute. An additional ground for

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dismissal, though it would be without prejudice, is plaintiff’s failure to serve any defendant

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For the Northern District of California

United States District Court

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with the summons and complaint as required by Fed. R. Civ. P. 4(m).
IT IS SO ORDERED.
Dated: July 8, 2011
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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