Miller et al -v- Bank of America, N.A., et al

Filing 11

ORDER DISMISSING CASE WITHOUT PREJUDICE. Signed by Judge Lucy H. Koh on April 18, 2013. (lhklc1, COURT STAFF) (Filed on 4/18/2013)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9

SAN JOSE DIVISION

United States District Court
For the Northern District of California

10
11

DAVID WYNN MILLER, EDUARDO R.
DIAO, and MARIA AIDA C. DIAO,

12
13
14
15

Plaintiffs,
v.
BANK OF AMERICA, N.A., PRLAP, INC.,
Defendants.

16
17

)
)
)
)
)
)
)
)
)
)
)

Case No.: 12-CV-05585-LHK
ORDER DISMISSING CASE WITHOUT
PREJUDICE

Plaintiffs David Wynn Miller, Eduardo R. Diao, and Maria Aida C. Diao (collectively,

18

“Plaintiffs”) filed their complaint in federal court on October 31, 2012. ECF No. 1. Pursuant to

19

Rule 4(m) of the Federal Rules of Civil Procedure, Plaintiffs were required to serve Defendants

20

within 120 days of the filing of the complaint. Fed. R. Civ. P. 4(m) (“If a defendant is not served

21

within 120 days after the complaint is filed, the court—on motion or on its own after notice to the

22

plaintiff—must dismiss the action without prejudice against the defendant or order that service be

23

made within a specified time.”). 120 days from the filing of Plaintiffs’ complaint was February 28,

24

2013. However, as of April 1, 2013, Plaintiffs had failed to submit any documentation

25

demonstrating that they had properly served Defendants.

26

Moreover, Plaintiffs failed to comply with the Court’s requirements regarding Case

27

Management Conferences. On January 28, 2013, the Court set a Case Management Conference for

28

March 27, 2013, and stated that the Case Management Statement was due by March 20, 2013. See
1
Case No.: 12-CV-05585-LHK
ORDER DISMISSING CASE WITHOUT PREJUDICE

1

ECF No. 6. Plaintiffs failed to file a timely Case Management Statement in violation of Civil

2

Local Rule 16-10 of the United States District Court for the Northern District of California.

3

Plaintiffs also failed to appear at the Case Management Conference.

4

In light of Plaintiffs’ failure to serve Defendants, failure to file a Case Management

5

Statement, and failure to appear at the March 27, 2013 Case Management Conference, the Court,

6

on April 1, 2013, ordered Plaintiffs to show cause why this case should not be dismissed for failure

7

to prosecute.1 ECF No. 9 (“OSC”). The Court ordered that Plaintiffs file a response to the OSC

8

by April 12, 2013. The Court set a hearing on the OSC for April 17, 2013, at 2:00 p.m. The Court

9

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

10

2013 hearing, Plaintiffs’ case would be dismissed without prejudice for failure to prosecute.

11

Plaintiffs did not respond to the OSC. Plaintiffs also did not appear at the April 17, 2013

12

hearing. Accordingly, in light of Plaintiffs’ failure to respond to the OSC and failure to appear at

13

the OSC hearing, the Court hereby DISMISSES Plaintiffs’ case without prejudice for failure to

14

prosecute. The Clerk shall close the file.

15

IT IS SO ORDERED.

16

Dated: April 17, 2013

17

_________________________________
LUCY H. KOH
United States District Judge

18
19
20
21
22
23
24
25
26
27
28

1

This Order corrected an error in the Court’s March 28, 2013 Order to Show Cause. ECF No. 8.
2

Case No.: 12-CV-05585-LHK
ORDER DISMISSING CASE WITHOUT PREJUDICE