Marshall v. Cox et al

Filing 9

ORDER that 7 Motion to Exempt This Case from Mediation is DENIED. FURTHER ORDERED that 8 Motion for Order to Show Cause is DENIED without prejudice. Signed by Magistrate Judge Nancy J. Koppe on 10/30/17. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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GEORGE L. MARSHALL,
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Plaintiff(s),
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v.
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JAMES COX, et al.,
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Defendant(s).
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__________________________________________)

Case No. 2:16-cv-0566-JAD-NJK
ORDER
(Docket Nos. 7, 8)

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Pending before the Court is Defendants’ motion to exempt this case from mediation. Docket No.

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7. Defendants seek such relief because Plaintiff failed to appear at a mediation in another case in 2016, and

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has not responded to Defendants’ counsel’s queries regarding prosecuting this case. Id. at 2-3. The Court

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is not persuaded that these grounds suffice to exempt this case from mediation, and the motion is DENIED.

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Also pending before the Court is Defendants’ motion for an order to show cause why this case

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should not be dismissed for failure to prosecute. Docket No. 8. The only conduct identified arising from

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this case is Plaintiff’s non-responsiveness to Defendants’ counsel’s queries regarding the case. Id. at 2-3.

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Defendants provide no legal authority that a plaintiff’s non-response to opposing counsel’s communications

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could be sufficient grounds to dismiss his case for lack of prosecution. Similarly, although Defendants

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again note Plaintiff’s failure to appear at a mediation in another case in 2016, see id., they provide no legal

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authority that such conduct in a different case could constitute a failure to prosecute this case. In short,

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while Defendants may believe that Plaintiff will not prosecute his case, they have not identified facts and

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legal authority showing that he has actually failed to do so at this point. Defendants’ motion is premature.

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Accordingly, the motion for an order to show cause why the case should not be dismissed for failure to

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prosecute is DENIED without prejudice. To the extent Plaintiff fails to prosecute his case moving forward,

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Defendants may seek relief from the Court.1

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IT IS SO ORDERED.

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Dated: October 30, 2017

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________________________________________
NANCY J. KOPPE
UNITED STATES MAGISTRATE JUDGE

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The Court expresses no opinion herein whether any future motion will be granted.
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