Clark v. Guerrero

Filing 98

ORDER that plaintiffs motion seeking reconsideration 97 is GRANTED. This courts previous order dismissing the case 96 is VACATED and the case re-opened. Defendants file any opposition to plaintiffs motion for trial 95 by Friday, April 27, 2012. Signed by Judge James C. Mahan on 4/13/12. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MICHAEL CLARK,

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2:09-CV-141 JCM (PAL)

Plaintiff,
v.
OFFICER GUERRERO,

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Defendant.

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ORDER
Presently before the court is plaintiff’s motion seeking reconsideration of this court’s
dismissal order. (Doc. #97). Defendants have not filed a response.

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On December 30, 2011, pursuant to Local Rule 41-1, this court dismissed the case due to

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plaintiff’s failure to prosecute his case for over 270 days. However, plaintiff has now brought to the

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court’s attention that he filed a motion to set trial in this matter on December 21, 2011, the final day

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before the case became subject to dismissal. Accordingly, this court should not have dismissed the

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motion pursuant to Local Rule 41-1.

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The court notes that the docket in this case reflects that the parties engaged in very little

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pretrial motion practice. The court’s docket does not reflect any discovery having taken place.

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Further, the plaintiff had failed to file any documents in this action for nearly a year. It was not until

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the very last day before this case was to be decided that plaintiff requested a trial be calendared.

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Taken together, these facts make it unlikely that this case is prepared for trial. Under these

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conditions, the court finds that plaintiff’s motion for trial may actually be an attempt to establish an

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intent to prosecute the case before the Rule 41-1 deadline expired.

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James C. Mahan
U.S. District Judge

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While this court should not have dismissed the action due to Local Rule 41-1, it is equally
inappropriate to set a case for trial where the plaintiff has failed to properly prepare the case.

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Therefore,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion seeking

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reconsideration (doc. #97) be, and the same hereby is, GRANTED.
IT IS THEREFORE ORDERED that this court’s previous order dismissing the case (doc.
#96) be, and the same hereby is, VACATED and the case re-opened.
IT IS FURTHER ORDERED that the defendants file any opposition to plaintiff’s motion for
trial (doc. #95) by Friday, April 27, 2012.
DATED April 13, 2012.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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