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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 MARILU SHIEH, Plaintiff(s), 8 9 ORDER OF DISMISSAL MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., et al., 11 For the Northern District of California United States District Court 10 v. No. C 11-0106 PJH 12 Defendant(s). _______________________________/ 13 On January 10, 2011 the complaint in this matter was filed and a summons was 14 issued for the three defendants. Plaintiff appeared at the April 21, 2011 case management 15 conference and was advised that she had only about 20 days left to serve the defendants. 16 She requested additional time to find counsel to represent her and to serve the defendants. 17 Plaintiff’s request was granted and she was afforded 60 additional days to serve the 18 defendants and to retain counsel. She was further ordered to appear in person or through 19 counsel at the continued conference on June 23, 2011. Plaintiff did not appear as ordered 20 on June 23, 2011, and no proof of service of any defendant had been filed. 21 Accordingly, an ORDER TO SHOW CAUSE (“OSC”) was issued, ordering plaintiff to 22 show cause why her complaint should not be dismissed for failure to prosecute, pursuant to 23 Rule 41(b) or for failure to serve pursuant to Rule 4(m) of the Federal Rules of Civil 24 Procedure. A hearing was scheduled for the OSC for July 7, 2011, and plaintiff was 25 warned that if she failed to appear again or failed to show good cause for her last absence, 26 or if no proof of service of the complaint was filed, the complaint would be dismissed. On 27 July 7, 2011, plaintiff failed to appear at the hearing on the OSC, failed to submit any 28 response in writing, and failed to file any proof of service of the complaint. 1 The court having considered the five factors set forth in Malone v. United States 2 Postal Service, 833 F.2d 128, 130 (9th Cir. 1987), and having determined that 3 notwithstanding the public policy favoring the disposition of actions on their merits, the 4 court's need to manage its docket and the public interest in the expeditious resolution of the 5 litigation require dismissal of this action. In view of plaintiff's lack of response to this court's 6 prior order(s), and her failure to appear not once, but twice as ordered, the court finds there 7 is no appropriate less drastic sanction. Accordingly, this action is dismissed with prejudice 8 pursuant to Fed. R. Civ. P. 41(b) for plaintiff's failure to prosecute. An additional ground for 9 dismissal, though it would be without prejudice, is plaintiff’s failure to serve any defendant 11 For the Northern District of California United States District Court 10 12 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 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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