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Ben Giles v. Justin Paul Thompson

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 7, 2012

BEN GILES,
PLAINTIFF,
v.
JUSTIN PAUL THOMPSON, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: M. James LorenzUnited States District Court Judge

ORDER GRANTING IN PART EX PARTE APPLICATION TO STAY DISMISSAL [DOC. 96]

On March 10, 2008, Plaintiff Ben Giles commenced this maritime personal-injury action against Defendants Justin Paul Thompson, Water Toys, Inc., Island Boat Rentals, and KDME, Inc. Plaintiff diligently prosecuted this action until November 2010.

On June 29, 2011, the Court issued a notice of hearing for dismissal under Civil Local Rule 41.1 for Plaintiff's failure prosecute this action for a period of more than 180 days. Prior to that hearing, Plaintiff made a request for entry of default against Mr. Thompson. Consequently, the Court granted Plaintiff a 30-day extension to pursue this action at the hearing. The hearing took place on July 18, 2011.

Following the July 2011 hearing, there again was no activity in this action for a period of more than 180 days. Moreover, Plaintiff failed to file a motion for default judgment following the Clerk's entry of default. As a result, the Court issued another notice of hearing for dismissal under Civil Local Rules 41.1 and 55.1. The hearing took place on February 13, 2012. At the hearing, the Court dismissed this action without prejudice, but granted Plaintiff's counsel's request for a 30-day stay of the dismissal. Thereafter, Plaintiff's counsel sought an order from the Court to approve the substitution of counsel. The Court approved the substitution, and Plaintiff is now proceeding pro se.

Plaintiff now moves to extend the stay of dismissal another 120 days. He indicates that he is currently enrolled in a 6-month residential rehabilitation program, but wishes "the opportunity to prove up the judgment against Defendant, Justin Thompson." (Pl.'s Appl. 1:20--2:2 [Doc. 96].) Plaintiff also states that he is currently in the "black-out" phase of his treatment. (Id. at 1:26--27.) Given that there has effectively been no activity in this action for over a year, Plaintiff's enrollment in the 6-month residential rehabilitation program fails to explain his failure to prosecute this action. That said, the Court will exercise its discretion and grant Plaintiff some leeway.

In light of the foregoing, the Court GRANTS IN PART Plaintiff's ex parte application. (Doc. 96.) Plaintiff shall be given a 30-day extension to the stay of dismissal. However, no further extensions will be granted henceforth.

IT IS SO ORDERED.

COPY TO:

HON. RUBEN B. BROOKS UNITED STATES MAGISTRATE JUDGE ALL COUNSEL/PARTIES

20120307

© 1992-2012 VersusLaw Inc.



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