Stephen Fantl et al v. David Glenwinkel et al

Filing 17

ORDER IMPOSING SANCTIONS PERSONALLY ON COUNSEL MATTHEW ELSTEIN, ORDER REASSIGNING CASE to a district judge, REPORT AND RECOMMENDATIONS to dismiss 1 Complaint for failure to prosecute. Objections due by 1/25/2018. Signed by Judge Kandis A. Westmore on 1/11/2018. (kawlc1, COURT STAFF) (Filed on 1/11/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEPHEN FANTL, ET AL.,
Plaintiffs,

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United States District Court
Northern District of California

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v.
DAVID GLENWINKEL, et al.,
Defendants.

Case No. 4:17-cv-02033-KAW
ORDER IMPOSING SANCTIONS;
ORDER REASSIGNING CASE TO A
DISTRICT JUDGE; REPORT AND
RECOMMENDATION TO DISMISS
FOR FAILURE TO PROSECUTE
Re: Dkt. No. 16

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This action was filed on April 12, 2017. (Dkt. No. 1.) Pursuant to Rule 4(m) of the Federal

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Rules of Civil Procedure, Plaintiffs had 90 days to complete service of the complaint and

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summons on Defendants, such that July 11, 2017 was the last day to complete service or to file a

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Motion for Administrative Relief from the deadline pursuant to Civil L.R. 7-11. On August 8,

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2017, the Court issued an order to show cause to Plaintiffs to explain, by August 22, 2017, why

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this matter should not be dismissed for failure to comply with the deadline to complete service.

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(Dkt. No. 9.) On August 23, 2017 (one day late), Plaintiffs responded to the order to show cause

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and requested that the deadline be extended to September 8, 2017. (Dkt. No. 10.) The undersigned

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granted the extension and discharged the order to show cause on August 25, 2017. (Dkt. No. 12.)

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Plaintiffs did not file a certificate of service nor did they seek leave of court for a further extension

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of time to complete service. Plaintiffs failed to file a case management statement in advance of

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the October 24, 2017 case management conference, and did not request that the case management

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conference be continued.

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On October 23, 2017, the Court issued a second order to show cause to Plaintiffs to

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explain, by November 8, 2017, why the case should not be dismissed for failure to comply with

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the deadline to complete service or file a Motion for Administrative Relief, and Plaintiffs’ counsel

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was instructed to explain why he should not pay monetary sanctions in the amount of $500 for his

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repeated failure to comply with the court’s deadlines. (Dkt. No. 13 at 1-2.) Plaintiffs were ordered

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to complete service on Defendants and file certificates of service on the docket by November 8,

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2017. Id. at 2. Plaintiffs were advised that the failure to comply with these deadlines may result in

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the case being dismissed for failure to prosecute. Id.

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On November 13, 2017, Plaintiffs’ counsel Matthew C. Elstein filed an untimely

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declaration in response to the order to show cause. (Dkt. No. 15.) Therein, Mr. Elstein explained

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that all defendants had been served via the waiver procedure, and that he expected defendants to

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answer or have their defaults taken by the end of November 2017. Id. at ¶ 2. Mr. Elstein
represented that he would return waiver forms as they were received, but before the end of

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United States District Court
Northern District of California

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November. Id. As a result, the second order to show cause was discharged. (Dkt. No. 16.)

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Despite counsel’s representations, however, Plaintiffs did not file waiver forms or

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certificates of service nor were any responses to the complaint filed. On December 11, 2017, the

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Court issued a third and final order to show cause why the court should not impose monetary

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sanctions in the amount of $500 on Mr. Elstein, personally, for his repeated failure to comply with

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the court’s orders. (Dkt. No. 16.) The deadline to respond to the third order to show cause was

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December 29, 2017. Id. Plaintiffs were also ordered to file certificates of service by December 29,

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2017, and were advised that the failure to timely respond to the order to show cause and file the

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certificates of service would result in this case being reassigned to a district judge with the

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recommendation that it be dismissed for failure to prosecute. Id.
To date, Plaintiffs have not filed a response to the order to show cause, and no certificates

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of service, waiver forms or any other documents have been filed in this case.

ORDER IMPOSING SANCTIONS

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Accordingly, the Court imposes sanctions in the amount of $500 on Mr. Elstein, to be paid

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personally, within 14 days of this order, made payable to the Clerk of the Court, 1301 Clay Street,

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400 South, Oakland, California 94612.
IT IS SO ORDERED.

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ORDER REASSIGNING CASE AND REPORT AND RECOMMENDATION
Additionally, since none of the named defendants have appeared in this action, the

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undersigned REASSIGNS this case to a district judge with the RECOMMENDATION that the

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case be dismissed without prejudice for failure to prosecute.

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Any party may file objections to this report and recommendation with the district judge

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within 14 days of being served with a copy. See 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b); N.D.

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Civil L.R. 72-3. The parties are advised that failure to file objections within the specified time

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may waive the right to appeal the District Court's order. IBEW Local 595 Trust Funds v. ACS

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Controls Corp., No. C-10-5568, 2011 WL 1496056, at *3 (N.D. Cal. Apr. 20, 2011).

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United States District Court
Northern District of California

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IT IS SO RECOMMENDED.
Dated: January 11, 2018
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KANDIS A. WESTMORE
United States Magistrate Judge

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