IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 16, 2012
LEONARD BAYLOR, PLAINTIFF,
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff, who is represented by counsel, commenced this action on April 20, 2012. (Dkt. No. 1.) On May 9, 2012, the undersigned granted plaintiff's application to proceed in forma pauperis, and directed plaintiff to submit copies of the required service documents to the United States Marshal (and file a statement with the court that such documents have been submitted to the United States Marshal) within fourteen (14) days of that order. (Dkt. No. 6 at 2.) Plaintiff failed to file the required statement and failed to submit the service documents to the U.S. Marshal in accordance with the court's order.
The court's May 9, 2012 scheduling order in this matter expressly states that failure to adhere to scheduling deadlines "may result in sanctions, including dismissal. L.R. 110. Plaintiff has an affirmative duty to prosecute this action, and failure to do so may result in a dismissal for lack of prosecution. Fed. R. Civ. P. 41(b). Requests to modify this order must be made by written motion." (Dkt. No. 8 at 3-4.)
Consequently, on November 1, 2012, the court issued an order to show cause ("OSC") directing plaintiff, within fourteen (14) days, to show cause in writing why this case should not be dismissed for lack of prosecution and failure to comply with court orders. The court cautioned plaintiff that failure to timely file the required writing would result in a recommendation that the action be dismissed with prejudice. SeeFed. R. Civ. P. 41(b); E.D. Cal. L.R. 110; see also Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that a court may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil procedure or the court's orders).
On November 14, 2012, plaintiff's counsel filed a response to the OSC. (Dkt. No. 10.) Plaintiff's counsel explained that his failure to submit the required service documents to the U.S. Marshal was the result of an inability to contact or meet with plaintiff to complete the intake process for representation. (Id. ¶ 2.) Plaintiff's counsel conducted an initial phone interview with plaintiff and completed the application to proceed in forma pauperis. (Id. ¶ 3.) However, despite multiple attempts, plaintiff's counsel has been unable to reach plaintiff since then, and he does not have an executed retainer agreement from plaintiff. (Id. ¶ 4.) Accordingly, plaintiff's counsel asserts that he does not believe that he can proceed with prosecuting this matter. (Id.)
In light of plaintiff's counsel's representations, it appears that plaintiff has abandoned prosecution of the case. The court therefore recommends that the action be dismissed without prejudice.
Accordingly, IT IS HEREBY ORDERED that:
1. The Clerk of Court randomly select and assign a United States District Judge to this case.
2. Plaintiff's counsel shall immediately serve a copy of this order and findings and recommendations on plaintiff by mail at his last known address and by e-mail at his last known e-mail address, if any.
IT IS FURTHER RECOMMENDED that:
1. The case be DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute.
2. The Clerk of Court be directed to vacate all dates and close this case.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served on all parties and filed with the court within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).
IT IS SO ORDERED AND RECOMMENDED.
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