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Walker v. Citibank

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


April 8, 2010

RICKIE L. WALKER, PLAINTIFF,
v.
CITIBANK, N.A. AS TRUSTEE FOR THE CERTIFICATE HOLDER OF STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., BEAR STERNS ALT-A TRUST, MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-3, ITS ASSIGNEES AND/OR SUCCESSORS, AND THE SERVICING AGENT; EMC MORTGAGE CORPORATION; BAYROCK MORTGAGE, INC. DEFENDANTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER IMPOSING SANCTION, RULE 4(M) NOTICE, CONTINUING STATUS CONFERENCE, AND REQUIRING EXPLANATION WHY CASE SHOULD NOT BE DISMISSED

Plaintiff and his lawyer were issued an Order to Show Cause on March 11, 2010 ("March 11 OSC"), which required them to explain why sanctions should not be imposed because of Plaintiff's failure to file a timely status report. Because of this filing failure, the status conference was rescheduled to April 12, 2010, and Plaintiff was required to file a status report no later than fourteen days prior to the April 12 status conference.

Plaintiff and his lawyer failed to respond to the March 11 OSC, and Plaintiff yet again failed to file a status report as required by the March 11 OSC. This second failure, combined with Plaintiff's failure to respond to the OSC, indicate Plaintiff is not interested in prosecuting this case, and that the risk of a monetary or another sanction has no effect on encouraging Plaintiff to comply with a court filing requirement.

"A scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril . . . . Disregard of the order would undermine the court's ability to control its docket . . . and reward the indolent and the cavalier." Johnson v. Mammoth Recreations, Inc. 975 F.2d 604, 610 (9th Cir. 1992) (internal citation and quotations omitted); see also Ayers v. City of Richmond, 895 F.2d 1267, 1270 (9th Cir. 1990) (affirming sanction of lawyer for failure to attend a settlement conference because "the date 'slipped by him'") (emphasis added). "The cogs of the wheel of justice move much more smoothly when attorneys who practice in this court follow the rules of practice and procedure . . . ." Dela Rosa v. Scottsdale Memorial Health Systems, Inc., 136 F.3d 1241, 1244 (9th Cir. 1998).

Since Plaintiff's counsel failed to file a timely status report and did not respond to the March 11 OSC, Plaintiff's attorney Mitchell Luke Abdallah and/or Abdallah Law Group is sanctioned four hundred dollars ($400.00). This sanction shall be paid to the Clerk of this Court no later than 4:30 p.m. on April 15, 2010, by a check made payable to the "United States Treasury." Proof of payment shall be filed no later than 4:30 p.m. on April 16, 2010. This sanction is personal to counsel or his law firm and shall not be transmitted to counsel's client.

Moreover, Plaintiff is notified under Rule 4(m) of the Federal Rules of Civil Procedure that any defendant not served with process within the 120 day period prescribed in that Rule may be dismissed as a defendant in this action unless Plaintiff provides proof of service or "shows good cause for the failure" to serve the defendant within this prescribed period in a filing due no later than 4:00 p.m. on April 15, 2010. Further, the doe defendants are dismissed since Plaintiff failed to provide justification for doe defendants as required in the November 16, 2009, order scheduling the status conference.

Also, since the status of this case has not yet been determined, the status conference scheduled for April 12, 2010, is continued to May 10, 2010, at 9:00 a.m. A joint status report shall be filed no later than fourteen days prior to the status conference.

Lastly, since it appears that Plaintiff is not interested in prosecuting this case, Plaintiff shall explain in a filing due no later than 4:00 p.m. on April 15, 2010, why this case shall not be dismissed because of Plaintiff's failure to prosecute this case. If Plaintiff fails to provide a sufficient explanation, this case could be dismissed without further communication with Plaintiff.

IT IS SO ORDERED.

20100408

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