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ALLAH EL v. CITY OF EL CERRITO

United States District Court, N.D. California


April 7, 2004.

AS — SAMAD ABDUL ALLAH EL, Plaintiff,
v.
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

ORDER

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.

I

  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 this case.

  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 as undeliverable.

  II

  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 plaintiff's complaint.

  IT IS SO ORDERED.

20040407

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