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Brown v. Penner

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 5, 2008

MAURICE BROWN, PLAINTIFF,
v.
M. PENNER, DEFENDANT.

ORDER

By order filed January 22, 2008, this court directed plaintiff to file a pretrial statement on or before May 16, 2008. Plaintiff failed to file a pretrial statement. Accordingly, on May 29, 2008, the court issued an order to show cause requiring plaintiff to file his pretrial statement within twenty days and show cause in writing why sanctions should not be imposed. In response to the order to show cause, plaintiff filed a request for a thirty-day extension of time to file a pretrial statement. On July 2, 2008, the court granted plaintiff's motion. However, plaintiff once again failed to file a pretrial statement within the required time. Accordingly, on August 13, 2008, the court vacated the pretrial conference scheduled in this case and recommended that this action be dismissed without prejudice. See Fed. R. Civ. P. 16(f); Local Rule 11-110. In response to court's findings and recommendations, plaintiff has filed objections and a motion for a ten-day extension of time to file a pretrial statement.

A review of the instant action raises serious questions regarding whether plaintiff has diligently prosecuted this case. Plaintiff is advised that the court possesses the discretionary authority to dismiss an action based on a plaintiff's failure to diligently prosecute. Fed. R. Civ. P. 41(b). In the interest of justice, the court will grant plaintiff a final extension of ten days from the date of service of this order to file his pretrial statement. However, the court will not vacate its findings and recommendations at this time. In addition, the court will not grant any further extensions of time for this purpose.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's August 28, 2008 motion for an extension of time (Doc. No. 67) is granted;

2. Plaintiff is granted a final ten days from the date of service of this order in which to file a pretrial statement; and

3. If plaintiff fails to comply with this order, this court will forward the August 13, 2008 findings and recommendations recommending that this action be dismissed without prejudice to the assigned district judge.

20080905

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