Hu v. The Guardian Life Insurance Company of America

Filing 14

Order by Hon. Lucy H. Koh Declining to Adopt 10 Report and Recommendations. (lhklc2, COURT STAFF) (Filed on 9/12/2017) (Additional attachment(s) added on 9/12/2017: # 1 Certificate/Proof of Service) (iym, COURT STAFF).

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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
Northern District of California

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JASON HU,
Plaintiff,

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Case No. 17-CV-04098-LHK
ORDER DECLINING TO ADOPT
REPORT AND RECOMMENDATION
TO DISMISS FOR FAILURE TO
PROSECUTE

v.
THE GUARDIAN LIFE INSURANCE
COMPANY OF AMERICA,

Re: Dkt. No. 10

Defendant.
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The instant case was removed to this Court from Santa Clara County Superior Court on

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July 20, 2017. ECF No. 1. On August 11, 2017, Magistrate Judge Nathanael Cousins ordered

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Plaintiff to show cause by August 25, 2017 why Plaintiff’s action should not be dismissed for

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failure to prosecute based on Plaintiff’s failure to “appear[] since the case was removed from state

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court.” ECF No. 9 at 1. Plaintiff did not respond to the order to show cause by the August 25,

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2017 deadline. Because Plaintiff did not consent to Magistrate Judge jurisdiction, Judge Cousins

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filed a report and recommendation on August 28, 2017 recommending that the District Court

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dismiss Plaintiff’s case for failure to prosecute unless Plaintiff “demonstrates an interest in

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pursuing his case.” ECF No. 10 at 1. On August 29, 2017, the instant case was reassigned to the

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Case No. 17-CV-04098-LHK
ORDER DECLINING TO ADOPT REPORT AND RECOMMENDATION TO DISMISS FOR FAILURE TO
PROSECUTE

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undersigned judge. ECF No. 11.
On September 7, 2017, within the 14-day period for Plaintiff to file objections to the report

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and recommendation, Plaintiff filed a letter responding to the report and recommendation. ECF

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No. 13. In the letter, Plaintiff also asked the Court not to dismiss his case and stated that Plaintiff

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could not respond to Judge Cousins’s August 11, 2017 order to show cause by the August 25,

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2017 deadline because Plaintiff did not receive the order to show cause until August 30, 2017. Id.

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Thus, in his September 7, 2017 letter, Plaintiff has both showed cause why Plaintiff could

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not respond to Judge Cousins’s order to show cause and “demonstrate[d] an interest in pursuing

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his case.” ECF No. 10, at 1; ECF No. 13. As a result, the Court finds that dismissal for failure to
prosecute is not warranted at this time. The Court therefore declines to adopt the recommendation

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United States District Court
Northern District of California

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to dismiss Plaintiff’s case for failure to prosecute. However, if Plaintiff does not diligently

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prosecute his case in the future, the Court may dismiss the instant case for failure to prosecute.

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IT IS SO ORDERED.

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Dated: September 12, 2017
______________________________________
LUCY H. KOH
United States District Judge

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Case No. 17-CV-04098-LHK
ORDER DECLINING TO ADOPT REPORT AND RECOMMENDATION TO DISMISS FOR FAILURE TO
PROSECUTE