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Struthmann v. County of San Diego

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 6, 2010

ARPAD STRUTHMANN, PLAINTIFF,
v.
COUNTY OF SAN DIEGO; AND DOES 1-20, DEFENDANTS.

The opinion of the court was delivered by: Hayes. Judge

ORDER

The matter before the Court is Defendant's Motion to Dismiss for Lack of Prosecution. (Doc. # 21).

BACKGROUND

Plaintiff Arpad Struthmann filed his complaint on December 5, 2008. (Doc. # 1). Plaintiff was initially represented by counsel, but in March of 2009, Plaintiff substituted himself in pro per. (Docs. # 8, 9, 12). On April 20, 2009, Plaintiff failed to appear at case management conference before Magistrate Judge Barbara Lynn Major. (Doc. # 14). The Magistrate Judge then ordered Plaintiff to Show Cause Why Sanctions Should Not Be Imposed. (Doc. # 14). The Magistrate Judge also ordered Plaintiff to appear in her court on May 14, 2009 to explain his absence. (Doc. # 14). Plaintiff failed to respond to the Order to Show Cause and failed to appear at the associated hearing. (Docs. # 17, 18). Despite Plaintiff's failure to comply with the Scheduling Order and the Order to Show Cause, the Magistrate Judge declined to impose sanctions. (Doc. # 18). The Magistrate Judge's Order Declining to Impose Sanctions was mailed to Plaintiff's address, but was returned as undeliverable. (Doc. # 19). Defendant subsequently mailed discovery requests to Plaintiff, which were also returned as undeliverable. (Doc. # 20). Plaintiff has not complied with the Court's discovery order and has not taken any action in this case since March 16, 2009.

On August 10, 2009, Defendant filed a Motion to Dismiss for Failure to Prosecute. (Doc. # 21). In their motion, Defendant contends it has continued to comply with the Magistrate Judge's Discovery Order (Doc. # 15) despite Plaintiff's failure to do so, incurring expenses on a case that Plaintiff appears to have abandoned (Doc. # 21). Defendant further contends that Plaintiff's conduct has prejudiced Defendant and that Plaintiff's actions constitute bad faith. (Doc. # 21).

On October 29, 2009, the Court issued an order to show cause which stated in part:

Pursuant to Federal Rule of Civil Procedure 41(b), "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action . . . ." Pursuant to Local Civil Rule 41.1, "[a]ctions or proceedings which have been pending in this court for more than six months, without any proceeding or discovery having been taken therein during such period, may, after notice, be dismissed by the court for want of prosecution." Plaintiff has not taken any action to advance his case in the past seven months. Plaintiff failed to comply with the Federal Rules of Civil Procedure by refusing to participate in discovery and failed to comply with the Magistrate Judge's Scheduling Order and Order to Show Cause. Plaintiff is hereby ORDERED TO SHOW CAUSE as to why this case should not be dismissed. (Doc. # 24 at 2).

To date, Plaintiff has failed to file a response to the Court's Order to Show Cause.

ORDER

IT IS HEREBY ORDERED that Defendant's Motion to Dismiss for Lack of Prosecution (Doc. # 21) is GRANTED and that this action is DISMISSED without prejudice.

WILLIAM Q. HAYES United States District Judge

20100106

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