Thielwisemiller v. Eder et al

Filing 25

ORDER directing Plaintiff to file a statement within 14 days explaining the issues re current address and jurisdiction as outlined in the attached order. Signed by Magistrate Judge William G. Cobb on 6/6/14. (Copy of order sent to Ms. Thielwisemiller at address noted on docket - PO Box 7768, Verdi, NV 89439 - and to what the Court believes to be the correct address - PO Box 768, Verdi, NV 89439.) (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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SARA THIELWISEMILLER,

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3:14-cv-00064-MMD-WGC
Plaintiff,

ORDER

v.
FREDDIE EDER, et. al.,
Defendants.

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Plaintiff, a pro se litigant, filed this action on January 30, 2014, in the United States

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District Court for the District of Nevada, alleging various claims related to a duplex dwelling

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unit located in the State of Hawaii, against defendants Freddie Eder, Flordelis Eder, and Mr. and

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Mrs. Hernandez, all of whom she alleges to be residents of the State of Hawaii. (Doc. # 2.) She

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asserts that the court may exercise diversity jurisdiction over this action. (Id.)

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After receiving the filing fee and complaint, the court attempted to send Plaintiff a minute

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order and notice that the case had been received (Docs. # 3, # 4); however, they were returned as

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undeliverable. (Docs. # 6, # 7.) Another minute order striking and returning discovery documents

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was also returned as undeliverable. (See Doc. # 11.)

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In the meantime, the Eder defendants filed a motion to quash service. (Doc. # 9.) The

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court set the matter for a hearing on April 16, 2014. (Docs. # 12, # 13.) Counsel for the Eder

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defendants advised the court that Plaintiff's post office box number may be wrong according to

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his prior involvement in litigation with Plaintiff. The Clerk sent a copy of the order setting the

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hearing to the new post office box number and advised her about the discrepancy regarding her

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address. The courtroom administrator spoke to Plaintiff regarding her mail being returned, was

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advised of the correct post office box number, and directed her to file a change of address with

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the court and she indicated she would do so.

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Nonetheless, Plaintiff failed submit her address to the court in writing and did not appear

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for the April 16, 2014 hearing. (Doc. # 15.) The court's efforts to contact her just prior to the

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hearing by telephone were unsuccessful. (Id.) The court advised her of Rule 4(m) and the

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implications if she failed to complete service within 120 days of the filing of the complaint. (Id.)

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The court also ordered Plaintiff to provide the court with her mailing address in writing as well

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as her physical address to substantiate the allegation in her complaint that she is a resident of the

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State of Nevada. (Id.) The court further directed that orders in this case be sent to both post office

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boxes provided by Plaintiff until the court received written confirmation of her address. (Id.)

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Finally, the court deferred the hearing on the motion to quash until June 6, 2014, when the court

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set the matter for another hearing. (Doc. # 15.)

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On April 30, 2014, Plaintiff filed a request for entry of clerk's default and default

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judgment against defendants Mrs. Hernandez (Docs. # 18, # 19.), Mr. Hernandez (Docs. # 18-1,

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# 20), Freddie Eder (Docs. # 18-2, # 21) and Flordelis Eder (Docs. # 18-3, # 22). Notably, she

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did not submit either her physical or mailing address to the court in writing.

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On May 6, 2014, the court entered an order denying entry of default as to the Eder

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defendants and deferred consideration of the request for entry of default as to the Hernandez

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defendants until the June 6, 2014 status conference. (Doc. # 23.) The motions for entry of default

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judgment were all denied without prejudice. (Id.) In that order, the court directed Plaintiff to file

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on or before May 29, 2014, a memorandum of points and authorities explaining whether the

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court may exercise personal jurisdiction over the defendants given Plaintiff's allegation that they

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all reside in the State of Hawaii, the property that is the subject of this action is in the State of

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Hawaii, and the conduct at issue took place in the State of Hawaii. (Id.)

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Once again, Plaintiff did not submit written confirmation of her address. Nor did she file

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a response regarding personal jurisdiction as the court directed. She also did not appear for the

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June 6, 2014 hearing.

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At the June 6, 2014 hearing, the court granted the Eder defendants' motion to quash

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service (Doc. # 9) and indicated that because venue appeared improper in Nevada it was going to

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order the matter transferred to the District of Hawaii.

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The court has further considered Plaintiff's failure to appear for hearings and comply with

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the court's orders to submit her current address in writing and file a statement advising the court

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of the basis for its exercise of personal jurisdiction over the defendants. The court has determined

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this conduct warrants a recommendation that this matter be dismissed with prejudice pursuant to

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Federal Rule of Civil Procedure 41(b). Under Rule 41(b) and the case law interpreting it, the

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court may sua sponte dismiss a case where the plaintiff fails to prosecute or comply with the

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court's orders, as Plaintiff has done here. Fed. R. Civ. P. 41(b); Franklin v. Murphy, 745 F.2d

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1221, 1232 (9th Cir. 1984) (citing Link v. Wabash Railroad, 370 U.S. 626, 633 1962)).

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Plaintiff is hereby notified of the court's intent to recommend dismissal pursuant to 41(b).

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Plaintiff has fourteen days from the date of this Order to file a statement explaining:

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(1) why she has continually failed to apprise the court in writing of her current address; (2) why

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she failed to appear for two court ordered hearings; and (3) why she failed to submit a statement

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regarding the basis for this court's exercise of personal jurisdiction over the defendants as the

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court ordered on May 6, 2014. This statement shall also contain: (1) Plaintiff's current address,

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and if she utilizes a post office box, she shall also include her physical domicile address so the

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court may determine jurisdictional questions; and (2) the previously ordered statement

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explaining the basis for this court to assert personal jurisdiction over the defendants who Plaintiff

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alleges reside in Hawaii.

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Upon receipt of this filing, or if the deadline for the filing passes with no statement filed

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by Plaintiff, the court will enter further necessary orders, including, if applicable, a report and

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recommendation to District Judge Miranda M. Du that this matter be dismissed with prejudice

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pursuant to Rule 41(b).

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IT IS SO ORDERED.

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June 6, 2014.

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WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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