Johnson v. Harvest Investment Management, LLC

Filing 21

ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED OR OTHER SANCTIONS NOT IMPOSED. Show Cause Response due by 3/22/2019. Order to Show Cause Hearing set for 3/26/2019 10:00 AM. Plaintiff and his counsel shall appear in person at the 3/26/2019 hearing. Signed by Judge Virginia K. DeMarchi on 3/18/2019. (vkdlc1S, COURT STAFF) (Filed on 3/18/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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SCOTT JOHNSON,
Plaintiff,

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United States District Court
Northern District of California

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Case No.18-cv-01627-VKD

v.
HARVEST INVESTMENT
MANAGEMENT, LLC,

ORDER TO SHOW CAUSE WHY
ACTION SHOULD NOT BE
DISMISSED OR OTHER SANCTIONS
NOT IMPOSED

Defendant.

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This action has been pending for over a year with no discernible progress. The Court is

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concerned by plaintiff Scott Johnson’s conduct in the case, which reflects a repeated disregard for

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court-ordered deadlines.

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Mr. Johnson filed the present action on March 15, 2018. Dkt. No. 1. Pursuant to the initial

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case management scheduling order and General Order No. 56, his last day to complete service on

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defendant Harvest Investment Management, LLC (“Harvest”) or file a motion for administrative

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relief from the service deadline was May 14, 2018. Dkt. No. 5. Mr. Johnson did not file any

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proof of service of the summons on Harvest or a motion for administrative relief from the May 14

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service deadline. Pursuant to the initial case management scheduling order and General Order No.

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56, the parties’ last day to conduct a joint site inspection was June 28, 2018, and Mr. Johnson’s

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last day to file a notice of need for mediation was August 9, 2018. Id. Mr. Johnson did not file a

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notice of need for mediation.

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On August 10, 2018, the Court issued an Order to Show Cause why the action should not

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be dismissed for failure to serve the summons and complaint within 90 days after the filing of the

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complaint pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Dkt. No. 9.

On August 16, 2018, Mr. Johnson filed a response to the Court’s Order to Show Cause.

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Dkt. No. 11. That response described Mr. Johnson’s unsuccessful efforts to locate and serve

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Harvest from March 21, 2018 to about mid-May 2018, but it suggests that Mr. Johnson made no

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efforts thereafter to serve the complaint between approximately mid-May and August 16, 2018.

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Dkt. Nos. 11-1, 11-3. Mr. Johnson did not explain this delay or why he failed to seek relief from

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the Court. Instead, Mr. Johnson requested an extension of the service deadline to September 30,

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2018. Dkt. No. 11 ¶ 11. On August 17, 2018, the Court granted that request and ordered Mr.

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Johnson to serve Harvest by September 30, 2018. Dkt. No. 12. The Court reset the June 28, 2018

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deadline for the joint site inspection to November 28, 2018, with all other General Order No. 56

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deadlines adjusted accordingly. Id.
On September 21, 2018, the parties filed a stipulated request to extend the deadline for

United States District Court
Northern District of California

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Harvest to respond to the complaint. Dkt. No. 16. The parties also requested a new scheduling

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order, noting that the deadline for the joint site inspection had already passed. The Court denied

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the request for a new scheduling order, as that request demonstrated that the parties had not

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bothered to read the Court’s August 17, 2018 order. Dkt. No. 17.
Pursuant to the Court’s August 17, 2018 order, Mr. Johnson’s last day to file a notice of

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need for mediation was January 9, 2019. Dkt. No. 12; see also Dkt. No. 5. He again failed to file

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a notice of need for mediation.

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The Court possesses the inherent power to dismiss an action sua sponte “to achieve the

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orderly and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 629–33

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(1962). Mr. Johnson is directed to file a written response to this order by March 22, 2019. Mr.

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Johnson and his counsel shall appear in person before the Court on March 26, 2019 at 10:00

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a.m. in Courtroom 2, Fifth Floor, 280 South First Street, San Jose, California 95113 and show

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cause why this action should not be dismissed without prejudice for failure to prosecute and why

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the Court should not sanction Mr. Johnson and/or his counsel for failure to comply with the

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Court’s prior orders.
IT IS SO ORDERED.

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Dated: March 18, 2019

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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United States District Court
Northern District of California

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