United States District Court, Northern District of California
May 19, 2003
ROBERT FORSTNER, PLAINTIFF,
NINA & WILLIAM SNYDER, ET AL., DEFENDANTS
The opinion of the court was delivered by: James Larson, United States Magistrate Judge
DISMISSAL WITH PREJUDICE
Plaintiff Robert Forstner ("Forstner") has failed to make his last two court appearances. The court warned him that if he failed to appear his case could be dismissed with prejudice for failure to prosecute. He has been notified by mail and none of the notices have been returned. The telephone number he gave his former counsel is now invalid and his new telephone number is unlisted, so the court has been unable to contact him by telephone. Accordingly, for good cause appearing, it is hereby ordered that his complaint is dismissed with prejudice. The parties shall bear their own costs. The clerk shall close the file.
Forstner filed his complaint December 10, 2002. Defendant William Snyder filed an answer and crossclaim January 28, 2002. Defendant Nina Snyder filed an answer and crossclaim February 28, 2002. Forstner filed an answer to both crossclaims March 19, 2002, along with a motion for entry of default. Default was declined by the Clerk on March 22, 2002. All parties consented to the jurisdiction of a magistrate judge April 29, 2002, and the case was reassigned May 2, 2002.
The first case management conference was held before this court June 19, 2002 and the case was referred for Early Neutral Evaluation ("ENE"). The ENE session was taken off calendar September 25, 2002. A further case management conference was held on February 5, 2003, but neither Forstner nor his counsel appeared. An Order to Show Cause ("OSC") was issued to both Forstner and his counsel for a hearing March 5, 2003. Forstner appeared without counsel at that hearing. The attorney separately requested permission to withdraw from the case. The court permitted counsel to withdraw continued the Case Management Conference to April 9, 2003 for Plaintiff to secure new counsel. On that date Plaintiff failed to appear, and the court issued another OSC advising Plaintiff that the court would consider dismissing his case with prejudice for failure to prosecute. On May 14, only counsel for the Snyders appeared.
Analysis and Conclusion
Courts have historically possessed an inherent power to dismiss suits for discretionary reasons such as failure to prosecute. See, e.g., Link v. Wabash R. Co., 370 U.S. 626, 629-631 (1962).
In the case at bar, the court has given Forstner every opportunity to present his case. He has not communicated with either his attorney or the court. He was ordered to appear and show cause, he was warned that his case could be dismissed with prejudice if he failed to appear. He failed to appear before the court on two successive occasions after the court ordered him to do so. The court has no reasonable alternative but to dismiss his complaint with prejudice. The parties shall bear their own costs and the clerk shall close the file.
IT IS SO ORDERED.
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