Sarmiento et al v. Marquez et al
Filing
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ORDER RE SERVICE AND DECLINING DISMISSAL (pjhlc2, COURT STAFF) (Filed on 1/7/2022)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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DANIELLE SARMIENTO, et al.,
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v.
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RUBY MARQUEZ, et al.,
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United States District Court
Northern District of California
Case No. 21-cv-06712-PJH
Plaintiffs,
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ORDER SETTING CASE
MANAGEMENT CONFERENCE AND
DIRECTING PLAINTIFFS TO SERVE
DEFENDANTS
Defendants.
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Before the court is the recommendation of Magistrate Judge Cousins to dismiss
the above-captioned case for failure to prosecute and failure to serve. See Dkt. 8, 9.
The complaint in this case was filed in August 2021. See Dkt. 1. Plaintiffs did not
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serve the complaint on defendants, nor did plaintiffs respond to any of the court’s
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communications, including communications about the initial case management
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conference in December 2021. See Dkt. 8.
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As a result of plaintiffs’ failure to respond and failure to consent to magistrate
judge jurisdiction, Magistrate Judge Cousins issued an order requesting reassignment to
a district judge, and further recommending that the case be dismissed without prejudice
for failure to serve defendants under Federal Rule of Civil Procedure 4(m) and failure to
prosecute the case. See Dkt. 9 at 2. The order gave parties 14 days to file objections to
the recommendation. Id.
Shortly after that order issued, plaintiffs’ counsel made a number of filings. In
addition to filing a case management statement, plaintiffs’ counsel also filed objections to
the previous order, explaining that a “technical, website error prevented plaintiffs’ counsel
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from receiving court notices.” Dkt. 14 at 2. The court accepts plaintiffs’ counsel’s
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proffered reason for the delay, and thus declines to dismiss this case either for failure to
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serve or for failure to prosecute.
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Plaintiffs further state that they “remain ready to serve defendants as soon as
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possible.” Dkt. 14 at 4. Indeed, plaintiffs’ counsel filed a proposed summons, which has
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now been issued. See Dkt. 15, 16. Accordingly, plaintiffs are directed to serve the
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complaint on defendants no later than January 21, 2022. The court will then conduct a
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case management conference on March 17, 2022 at 2:00 p.m. See also Dkt. 17.
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IT IS SO ORDERED.
United States District Court
Northern District of California
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Dated: January 7, 2022
/s/ Phyllis J. Hamilton
PHYLLIS J. HAMILTON
United States District Judge
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