This matter is before the court following plaintiff's response to the court's order that he show cause why the action should not be dismissed for his failure to prosecute. After considering plaintiff's response, the court hereby orders the case dismissed.
Plaintiff filed the instant complaint on October 30, 2009, alleging that he had discovered a number of ADA violations at Western Ranch Supply, a pet store in Vacaville, owned by defendant. ECF No. 1. Defendant was served with summons and complaint on November 24, 2009. ECF No. 5. On December 21, 2009, the parties stipulated that defendant could have additional time to answer the complaint. ECF No. 4.
On January 20, 2010, the parties filed a joint status report noting, among other things, that plaintiff had served a settlement demand, but that defendant had not yet responded.
ECF No. 7. The court issued a pretrial scheduling order on January 28, 2010, setting the case for trial on October 4, 2011 with a dispositive motion cut-off date of May 27, 2011 and referring the case to the Voluntary Dispute Resolution Program (VDRP) at the parties' request. ECF No. 9.
On February 1, 2010, defendant filed a notice of related case and on February 4, 2010, the court ordered Civ. No. S-09-0071 FCD DAD related to the instant case. ECF Nos. 10, 12. Thereafter defendant dismissed the cross-complaint against JP Dolan Lumber Company and JP Dolan, which had been related. ECF No. 15.
On November 10, 2010, the VDRP administrator notified the court that the VDRP process had completed and the case had settled.
On March 4, 2011, this court ordered the parties to file a joint status report. ECF No. 18. On March 16, 2011, the parties filed their status report, representing that they "are currently in settlement and a settlement agreement is being finalized." ECF No. 19. The court thereafter vacated the dates for final pretrial conference and trial "[i]n light of the parties' ongoing settlement negotiations." ECF No. 21.
On August 9, 2011, the parties filed a joint status report, again representing that they were "currently in settlement and are finalizing a settlement agreement." ECF No. 22.
On August 28, 2012 the court directed the parties to file an updated joint status report. ECF N0. 23. In response, plaintiff filed a joint status report addressing factors applicable to an initial status report, as though a pretrial scheduling order had not issued. For example, plaintiff discussed the time necessary for discovery, proposed an August 2013 trial date and consented to a VDRP referral. He also noted that the case had settled. ECF No. 25. On September 25, 2012, the court directed the parties to file dispositional documents based on the representation that the case had settled. ECF No. 26.
On November 20, 2012, the court directed plaintiff to show cause why this action should not be dismissed for failure to prosecute.
On December 4, 2012, plaintiff filed a response, claiming that the blame for the delay lies with defendant's counsel, who failed to respond to plaintiff's request for progress on finalizing settlement or who represented that she had been unable to reach defendant. ECF No. 28. Plaintiff has provided copies of emails from his office to defense counsel's office. The first, in November 2010, included a copy of the settlement agreement. ECF No. 28-1 at 2. The second, December 2010, asked for an update on the settlement. ECF No. 28-2 at 2. The next communication was in March 2011, asking for counsel's participation in preparing the status report and asking about the funds for the settlement. ECF No. 28-3 at 2. This was followed by an email in April 2011, again asking about the settlement agreement and funds. ECF No. 28-4 at 2. A further request for information was sent in May 2011. The next written communications were a FAX on February 1, 2012 and then emails in August and October 2012. ECF Nos. 28-6 at 2, 28-7 at 2, 28-8 at 2. In his declaration in support of the response, plaintiff avers that he received email replies from defendant's counsel in February, March, May, and December 2011, but he has not attached those documents. He represents that counsel assured him that she was working on the settlement or attempting to contact her client. ECF No. 28 ¶¶ 7, 8, 10, 14, 16,
In addition, plaintiff avers that he either left messages for or spoke to defendant's counsel in January and March 2011 and in October, November and December 2012. ECF No. 28 ¶¶ 6, 11, 22, 29. Defendant's counsel told plaintiff that she was working on completing the settlement or that she was unable to contact defendant.
Plaintiff asks that the case remain open "as it is Defendants [sic] Counsel who has stated that this matter has settled; however, Counsel has not been able to complete the settlement agreement due to limited communication ...