United States District Court, N.D. California
April 7, 2004.
AS SAMAD ABDUL ALLAH EL, Plaintiff,
CITY OF EL CERRITO, D ALVAREZ #E102, SUSAN CARMAN and M TANG, Defendants
The opinion of the court was delivered by: VAUGHN WALKER, District Judge
Defendants move the court to dismiss the above captioned
action due to plaintiff's failure to prosecute. Def Mot (Doc # 10).
According to the analysis below, the court GRANTS defendants1 motion.
Plaintiff filed his complaint on August 12, 2002. Doc # 1. Plaintiff
alleges that he suffered various harms arising out of an incident in
which he claims to have been pulled over by state police officers.
Plaintiff brings claims for racial profiling, discrimination, "Forced Jurisdiction," theft of his motorcycle by
the officers, the presence of a threat and "Refusing to state the law,"
for a total of $4,515,000 in damages. See id, Prayer.
Defendant City of El Cerrito filed an answer (Doc # 5) on September 3,
2002, but the remaining defendants did not file an answer because they
had not been served. On December 3, 2002, the court issued an order
directing plaintiff to comply with FRCP 4, which requires that a valid
proof of service be filed with the court. Order (Doc # 9). Between
December 3, 2002, and the present time, plaintiff has taken no action in
On January 30, 2004, defendants filed a motion to dismiss the case for
failure to prosecute. Doc # 10. Defendants' attorney, Peter Edrington,
declares that plaintiff has not served the remaining defendants.
Edrington Decl (Doc # 12) at ¶ 3. Edrington further represents that
"[n]o written discovery has been propounded, no depositions taken and no
subpoenas have been issued." Id. at ¶ 2.
Plaintiff has failed to oppose, or file a statement of non
opposition to, defendants' motion to dismiss within 21 days of the
hearing as required by Civ L-R 7-3. Moreover, the clerks' notice
renoticing the hearing date from April 1 to April 8, 2004, was returned
Federal Rule of Civil Procedure 41(b) authorizes dismissal of an action
"[f]or failure of the plaintiff to prosecute or to comply with [the
Federal Rules of Civil Procedure] or any order of court. Id. The court
acknowledges that "dismissal is a harsh penalty and, therefore, it should only be imposed in extreme
circumstances." Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th
Cir. 1992) (emphasis omitted).
Because plaintiff has failed to follow the court's December 3, 2002,
order requiring him to effect service on the remaining defendants and
plaintiff has failed to take any actions in the above captioned
case after filing the complaint, the court DISMISSES without prejudice
IT IS SO ORDERED.
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