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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STEPHEN FANTL, ET AL., Plaintiffs, 8 9 10 United States District Court Northern District of California 11 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 12 13 This action was filed on April 12, 2017. (Dkt. No. 1.) Pursuant to Rule 4(m) of the Federal 14 Rules of Civil Procedure, Plaintiffs had 90 days to complete service of the complaint and 15 summons on Defendants, such that July 11, 2017 was the last day to complete service or to file a 16 Motion for Administrative Relief from the deadline pursuant to Civil L.R. 7-11. On August 8, 17 2017, the Court issued an order to show cause to Plaintiffs to explain, by August 22, 2017, why 18 this matter should not be dismissed for failure to comply with the deadline to complete service. 19 (Dkt. No. 9.) On August 23, 2017 (one day late), Plaintiffs responded to the order to show cause 20 and requested that the deadline be extended to September 8, 2017. (Dkt. No. 10.) The undersigned 21 granted the extension and discharged the order to show cause on August 25, 2017. (Dkt. No. 12.) 22 Plaintiffs did not file a certificate of service nor did they seek leave of court for a further extension 23 of time to complete service. Plaintiffs failed to file a case management statement in advance of 24 the October 24, 2017 case management conference, and did not request that the case management 25 conference be continued. 26 On October 23, 2017, the Court issued a second order to show cause to Plaintiffs to 27 explain, by November 8, 2017, why the case should not be dismissed for failure to comply with 28 the deadline to complete service or file a Motion for Administrative Relief, and Plaintiffs’ counsel 1 was instructed to explain why he should not pay monetary sanctions in the amount of $500 for his 2 repeated failure to comply with the court’s deadlines. (Dkt. No. 13 at 1-2.) Plaintiffs were ordered 3 to complete service on Defendants and file certificates of service on the docket by November 8, 4 2017. Id. at 2. Plaintiffs were advised that the failure to comply with these deadlines may result in 5 the case being dismissed for failure to prosecute. Id. 6 On November 13, 2017, Plaintiffs’ counsel Matthew C. Elstein filed an untimely 7 declaration in response to the order to show cause. (Dkt. No. 15.) Therein, Mr. Elstein explained 8 that all defendants had been served via the waiver procedure, and that he expected defendants to 9 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 11 United States District Court Northern District of California 10 November. Id. As a result, the second order to show cause was discharged. (Dkt. No. 16.) 12 Despite counsel’s representations, however, Plaintiffs did not file waiver forms or 13 certificates of service nor were any responses to the complaint filed. On December 11, 2017, the 14 Court issued a third and final order to show cause why the court should not impose monetary 15 sanctions in the amount of $500 on Mr. Elstein, personally, for his repeated failure to comply with 16 the court’s orders. (Dkt. No. 16.) The deadline to respond to the third order to show cause was 17 December 29, 2017. Id. Plaintiffs were also ordered to file certificates of service by December 29, 18 2017, and were advised that the failure to timely respond to the order to show cause and file the 19 certificates of service would result in this case being reassigned to a district judge with the 20 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 21 22 of service, waiver forms or any other documents have been filed in this case. ORDER IMPOSING SANCTIONS 23 24 Accordingly, the Court imposes sanctions in the amount of $500 on Mr. Elstein, to be paid 25 personally, within 14 days of this order, made payable to the Clerk of the Court, 1301 Clay Street, 26 400 South, Oakland, California 94612. IT IS SO ORDERED. 27 28 /// 2 1 2 ORDER REASSIGNING CASE AND REPORT AND RECOMMENDATION Additionally, since none of the named defendants have appeared in this action, the 3 undersigned REASSIGNS this case to a district judge with the RECOMMENDATION that the 4 case be dismissed without prejudice for failure to prosecute. 5 Any party may file objections to this report and recommendation with the district judge 6 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. 7 Civil L.R. 72-3. The parties are advised that failure to file objections within the specified time 8 may waive the right to appeal the District Court's order. IBEW Local 595 Trust Funds v. ACS 9 Controls Corp., No. C-10-5568, 2011 WL 1496056, at *3 (N.D. Cal. Apr. 20, 2011). 10 United States District Court Northern District of California 11 IT IS SO RECOMMENDED. Dated: January 11, 2018 __________________________________ KANDIS A. WESTMORE United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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