Miller et al -v- Bank of America, N.A., et al
Filing
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ORDER DISMISSING CASE WITHOUT PREJUDICE. Signed by Judge Lucy H. Koh on April 18, 2013. (lhklc1, COURT STAFF) (Filed on 4/18/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
United States District Court
For the Northern District of California
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DAVID WYNN MILLER, EDUARDO R.
DIAO, and MARIA AIDA C. DIAO,
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Plaintiffs,
v.
BANK OF AMERICA, N.A., PRLAP, INC.,
Defendants.
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Case No.: 12-CV-05585-LHK
ORDER DISMISSING CASE WITHOUT
PREJUDICE
Plaintiffs David Wynn Miller, Eduardo R. Diao, and Maria Aida C. Diao (collectively,
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“Plaintiffs”) filed their complaint in federal court on October 31, 2012. ECF No. 1. Pursuant to
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Rule 4(m) of the Federal Rules of Civil Procedure, Plaintiffs were required to serve Defendants
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within 120 days of the filing of the complaint. Fed. R. Civ. P. 4(m) (“If a defendant is not served
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within 120 days after the complaint is filed, the court—on motion or on its own after notice to the
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plaintiff—must dismiss the action without prejudice against the defendant or order that service be
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made within a specified time.”). 120 days from the filing of Plaintiffs’ complaint was February 28,
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2013. However, as of April 1, 2013, Plaintiffs had failed to submit any documentation
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demonstrating that they had properly served Defendants.
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Moreover, Plaintiffs failed to comply with the Court’s requirements regarding Case
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Management Conferences. On January 28, 2013, the Court set a Case Management Conference for
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March 27, 2013, and stated that the Case Management Statement was due by March 20, 2013. See
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Case No.: 12-CV-05585-LHK
ORDER DISMISSING CASE WITHOUT PREJUDICE
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ECF No. 6. Plaintiffs failed to file a timely Case Management Statement in violation of Civil
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Local Rule 16-10 of the United States District Court for the Northern District of California.
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Plaintiffs also failed to appear at the Case Management Conference.
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In light of Plaintiffs’ failure to serve Defendants, failure to file a Case Management
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Statement, and failure to appear at the March 27, 2013 Case Management Conference, the Court,
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on April 1, 2013, ordered Plaintiffs to show cause why this case should not be dismissed for failure
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to prosecute.1 ECF No. 9 (“OSC”). The Court ordered that Plaintiffs file a response to the OSC
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by April 12, 2013. The Court set a hearing on the OSC for April 17, 2013, at 2:00 p.m. The Court
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also advised Plaintiffs that if Plaintiffs failed to respond to the OSC and to appear at the April 17,
United States District Court
For the Northern District of California
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2013 hearing, Plaintiffs’ case would be dismissed without prejudice for failure to prosecute.
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Plaintiffs did not respond to the OSC. Plaintiffs also did not appear at the April 17, 2013
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hearing. Accordingly, in light of Plaintiffs’ failure to respond to the OSC and failure to appear at
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the OSC hearing, the Court hereby DISMISSES Plaintiffs’ case without prejudice for failure to
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prosecute. The Clerk shall close the file.
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IT IS SO ORDERED.
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Dated: April 17, 2013
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_________________________________
LUCY H. KOH
United States District Judge
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This Order corrected an error in the Court’s March 28, 2013 Order to Show Cause. ECF No. 8.
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Case No.: 12-CV-05585-LHK
ORDER DISMISSING CASE WITHOUT PREJUDICE
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