ORDER ON DEFENDANT'S MOTION FOR INVOLUNTARY DISMISSAL (Doc. No. 22)
This is a civil rights action filed by Plaintiff Marcos Gonzales ("Gonzales") against the County of Fresno ("the County") and personnel of the Fresno County Sheriff's Department. Gonzales filed suit in 2009 and alleged violations of state law, as well as 42 U.S.C. § 1983. The only Defendant who has made an appearance and been served is the County. The remaining defendants were served on February 27, 2011. See Court's Docket Doc. Nos. 26, 27, 28. The County now moves for an involuntary dismissal under Rule 41(b). For the reasons that follow, the Court will grant the motion and close this case.
Gonzales filed this lawsuit on August 31, 2009. See Court's Docket Doc. No. 1. A summons was issued on September 2, 2009. See id. at Doc. No. 7. Summonses were returned executed for each Defendant on March 4, 2010. See id. at Doc. Nos. 10, 11, 12, 13, 14. The returned summonses indicated that each Defendant was served at the Fresno County Clerk's Office. See id. The summons that identifies each Defendant was stamped "Service accepted on behalf County of Fresno Only." See id. at Doc. No. 29-1 at Ex. A.
On March 22, 2010, counsel for the County informed Gonzales's counsel that the summons was served with the Clerk of the Board of Supervisors of the County. See Velasco Dec. Ex. A. The letter stated that service was accepted by the County only. Id. The letter continued, "The Clerk cannot accept service for the individuals. To serve an employee of the Sheriff's Department, service needs to be with the Sheriff's Department Civil Desk." Id.
On March 23, 2010, the County filed its answer. See id. at Doc. No. 15.
On April 14, 2010, the Magistrate Judge issued a scheduling order. See id. at Doc. No. 20. Initial disclosures were ordered to be exchanged by May 3, 2010, the non-expert discovery deadline was set at February 11, 2011, the expert discover deadline was set for March 25, 2011, and trial was set for September 13, 2011. See id.
On June 4, 2010, after receiving reminders from the County on May 6 and June 3, Gonzales filed his Rule 26 disclosures. See id. at Doc. No. 22-2 at ¶ 3; Velasco Dec. ¶ C; Doc. No. 21.
On May 13, 2010, Defendants served written discovery on Gonzales. See Velasco Dec. ¶ B. After several e-mail exchanges, agreements to extend the time in which to respond (due in part to Gonzales's transfer from Fresno County Jail to Wasco State Prison), and the threat of motions to compel, answers to the discovery requests were received on August 10, 2010.See id. at Ex. D, E, F, G, H.
On October 14, 2010, after apparently having cleared dates among the counsel, the County set Gonzales's deposition for October 27, 2010. See id. at Ex. I. On October 26, 2010, Gonzales canceled the deposition. See id. at Doc. No. 22-2 at ¶ 12. Gonzales's counsel's office indicated that numerous attempts had been made to contact Gonzales, but that Gonzales was not returning any of the calls. Id. The County's counsel sent an e-mail requesting new dates for a deposition and stated the County's intention to follow the scheduling order. See id. at Velasco Ex. J. Later on October 26, the respective counsels spoke on the telephone and set a new deposition date of December 1, 2010. See id. at Ex. K.
On November 16, 2010, Gonzales's counsel sent an e-mail that indicated that Gonzales was unavailable on December 1 until 1:30 p.m., due to a court hearing in an unrelated matter. See id. at Ex. L. The same day, the respective counsels confirmed the deposition for 1:30 p.m. on December 1, 2010. See id.
On December 1, 2010, Gonzales's counsel appeared, but Gonzales did not. See id. at Ex. M. It was represented on the record that Gonzales was ordered to report to his parole officer and had not been released by the officer. See id. About one hour later, an individual from Gonzales's counsel's office indicated that Gonzales had failed a drug test ordered by the parole officer and, as a result, Gonzales was being checked in to a drug rehabilitation facility. See id. at Doc. No. 22-2 at ¶ 17. Gonzales's counsel was to inform County's counsel of the location of the facility. See id.
On December 8, 2010, County's counsel received the name of Gonzales's rehabilitation facility. See Velasco Dec. Ex. N. The County was told to work with the facility to set the deposition. See id.
The County attempted to set deposition dates, but received no help from the rehabilitation center and instead asked Gonzales's counsel for assistance. See id. at Ex. O.
On January 4, 2011, the County followed up with Gonzales's counsel regarding efforts to set a deposition date of ...