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Kimes v. Shinseki

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


September 11, 2009

CURTIS R. KIMES, PLAINTIFF,
v.
ERIK K. SHINSEKI, SECRETARY, U.S. DEPARTMENT OF VETERAN AFFAIRS, DEFENDANT.

ORDER SETTING STATUS (PRETRIAL SCHEDULING) CONFERENCE

This action has been assigned to United States District Judge Garland E. Burrell, Jr. and has been referred to United States Magistrate Judge Dale A. Drozd pursuant to Local Rule 72-302(c)(21) for all purposes encompassed by that provision.*fn1 The matter came before the court for status (pretrial scheduling) conference on July 31, 2009. Plaintiff Curtis Kimes, proceeding pro se, appeared on his own behalf. No appearance was made on behalf of defendant. At the status conference the court expressed concern that plaintiff had not properly carried out service of process upon defendant in accordance with the Federal Rules of Civil Procedure. The court advised plaintiff in this regard, continued the status conference and directed plaintiff to serve this order upon defendant once the summons and complaint was properly served.

Pursuant to the provisions of Rule 16 of the Federal Rules of Civil Procedure, IT IS ORDERED that:

1. A Status (Pretrial Scheduling) Conference is now set for Friday, December 4, 2009, at 11:00 a.m., in Courtroom No. 27, before Magistrate Judge Drozd.

2. Rule 4(m) of the Federal Rules of Civil Procedure provides that an action may be dismissed against any defendant on whom service of process has not been completed within 120 days from the date the complaint was filed. In order to ensure compliance with the 120-day time limits specified in Rules 4(m) and 16(b), plaintiff is strongly encouraged to complete service of process on the defendant within 90 days of the date of filing his complaint.

3. Concurrently with service of process on the defendant, or as soon thereafter as possible, plaintiff shall serve upon the defendant and UPON ALL PARTIES SUBSEQUENTLY JOINED, INCLUDING IMPLEADED THIRD-PARTY DEFENDANTS, a copy of this order, and plaintiff shall promptly file with the Clerk of the Court a certificate reflecting such service.

4. Plaintiff shall also serve on the defendant a copy of the Notice of Availability of Magistrate Judge and a copy of the consent form issued by the Clerk of the Court on March 27, 2009.

5. Each party shall appear at the Status Conference by counsel or, if proceeding in propria persona, on his own behalf. Parties may choose to appear at the status conference in person or telephonically. To arrange telephonic appearance, the party shall contact Pete Buzo, the courtroom deputy of the undersigned magistrate judge, at (916) 930-4128, no later than 48 hours before the Status (Pretrial Scheduling) Conference.

6. Plaintiff shall file and serve a status report on or before November 20, 2009, and the defendant shall file and serve a status report on or before November 30, 2009. Each status report shall address all of the following matters:

a. Progress of service of process;

b. Possible joinder of additional parties;

c. Any expected or desired amendment of the pleadings;

d. Jurisdiction and venue;

e. Anticipated motions and the scheduling thereof;

f. Anticipated discovery and the scheduling thereof, including disclosure of expert witnesses;

g. Future proceedings, including the setting of appropriate cut-off dates for discovery and for law and motion, and the scheduling of a final pretrial conference and trial;

h. Modification of standard pretrial procedures specified by the rules due to the relative simplicity or complexity of the action;

i. Whether the case is related to any other case, including matters in bankruptcy;

j. Whether the parties will stipulate to the assigned magistrate judge acting as settlement judge, waiving any disqualification by virtue of his so acting, or whether they prefer to have a Settlement Conference before another magistrate judge;

k. Whether the parties intend to consent to proceed before a United States Magistrate Judge; and

l. Any other matters that may aid in the just and expeditious disposition of this action.

7. The pro se plaintiff is cautioned that failure to file a timely status report or failure to appear at the status conference either in person or telephonically may result in a recommendation that this case be dismissed for lack of prosecution and as a sanction for failure to comply with court orders and applicable rules. See Local Rules 11-110 and 83-183.


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