Weaver v. State of California Department of Coreections et al

Filing 25

ORDER: That Plaintiff shall file with the Court a notice of current address and a notice of intent to prosecute no later than (30) thirty-days from the date of this Order re 18 Motion to Dismiss. Signed by Judge Saundra Brown Armstrong, on 11/7/11. (lrc, COURT STAFF) (Filed on 11/15/2011) Modified on 11/15/2011 (jlm, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 11-00150 SBA (PR)

JEFF WEAVER,
Plaintiff,
v.
STATE OF CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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ORDER DIRECTING PLAINTIFF TO
SHOW CONTINUED INTENT TO
PROSECUTE THIS ACTION AND TO
PROVIDE COURT WITH CURRENT
ADDRESS; AND GRANTING HIM AN
EXTENSION OF TIME TO FILE
OPPOSITION TO DEFENDANTS'
DISPOSITIVE MOTION

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For the Northern District of California

United States District Court

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Before the Court is Defendants' dispositive motion, which was filed on July 11, 2011. To
date, Plaintiff's opposition has not been filed, and it is overdue.

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On August 12, 2011, Northern District Judge Jeremy Fogel issued an Order permitting

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Plaintiff's former counsel, Richard Philip Sax, to withdraw appearance and granting a continuance to

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enable Plaintiff to retain new counsel.

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On September 28, 2011, this action was reassigned to the undersigned judge. The record

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shows that Attorney Sax has "lost contact with Plaintiff." (Sax Decl. ¶ 4.) Furthermore, Plaintiff

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has not yet retained new counsel nor has he updated his current address with the Court.

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Pursuant to Federal Rule of Civil Procedure 41(b), a district court may sua sponte dismiss an

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action for failure to prosecute or to comply with a court order. See Link v. Wabash R.R., 370 U.S.

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626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). But such a dismissal

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should only be ordered when the failure to comply is unreasonable. See id. A district court should

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afford the litigant prior notice of its intention to dismiss. See Malone v. United States Postal Serv.,

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833 F.2d 128, 133 (9th Cir. 1987). Pursuant to Northern District Local Rule 3-11, a party

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proceeding pro se whose address changes while an action is pending must promptly file and serve

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upon all opposing parties a notice of change of address specifying the new address. See L.R. 3-

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11(a). The Court may, without prejudice, dismiss a complaint or strike an answer when: (1) mail

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directed to the attorney or the pro se party by the court has been returned to the court as not

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deliverable, and (2) the court fails to receive within sixty days of this return a written

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communication from the attorney or pro se party indicating a current address. See L.R. 3-11(b).

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In the instant case, Plaintiff has lost contact with his former counsel, who has since

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withdrawn from this action. Plaintiff has never directly communicated with the Court; therefore, he

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does not have an address on record. Accordingly, it is in the interests of justice and judicial

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efficiency for the Court to establish Plaintiff's current address and whether he intends to continue to

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prosecute this action.

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In light of the foregoing, IT IS HEREBY ORDERED that Plaintiff shall file with the Court a
notice of his current address and his continued intent to prosecute no later than thirty (30) days
from the date of this Order. Failure to timely do so shall result in dismissal of this action without

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For the Northern District of California

United States District Court

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prejudice under Federal Rule of Civil Procedure 41(b).

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IT IS ALSO HEREBY ORDERED that, if Plaintiff wishes to continue to prosecute this

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action, he is GRANTED an extension of time in which to file his opposition to Defendants'

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dispositive motion. The time in which Plaintiff may file his opposition to Defendants' dispositive

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motion will be extended up to and including thirty (30) days from the date he files the notice of his

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current address and his continued intent to prosecute. Defendants shall file a reply brief no later

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than fifteen (15) days after the date Plaintiff's opposition is filed.

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The Clerk is directed to send a copy of this Order to Plaintiff's former counsel, Richard

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Philip Sax, at the Law Offices of Richard Sax, 448 Sebastopol Avenue, Santa Rosa, CA 95401. The

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Clerk is also directed to contact Attorney Sax at [phone], to obtain Plaintiff's last-known

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address, and to send a copy of this Order to that address.

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IT IS SO ORDERED.

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DATED: 11/7/11
SAUNDRA BROWN ARMSTRONG
United States District Judge

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For the Northern District of California

United States District Court

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