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Jose Cervantes et al v. Cemex

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 12, 2013

JOSE CERVANTES ET AL.,
PLAINTIFFS,
v.
CEMEX, INC. ET AL., DEFENDANTS.

The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER GRANTING STIPULATION TO CONTINUE SCHEDULING CONFERENCE (Doc. 8)

Before the Court is the stipulation of counsel to continue the scheduling conference, currently set on March 13, 2013. (Doc. 8) In the stipulation, Plaintiffs' counsel reports that they failed to serve the summons and compliant until January 11, 2013, when they mailed Defendant a request for waiver of personal service. Id. at 2. Defendant agreed to waive personal service so its appearance is not due until March 11, 2013. Id.

Not explained in the stipulation is why Plaintiffs delayed for nearly 45 days from the date the summons was issued, to seek the waiver of personal service. (Doc. 4) Notably, at that time, the Court issued its order setting the scheduling conference in which it explicitly warned Plaintiffs not to delay service. Id. at 1-2. This order reads,

The Court is unable to conduct a scheduling conference until defendants have been served with the summons and complaint. Accordingly, plaintiff(s) shall diligently pursue service of summons and complaint and dismiss those defendants against whom plaintiff(s) will not pursue claims. Plaintiff(s) shall promptly file proofs of service of the summons and complaint so the Court has a record of service. Counsel are referred to F.R.Civ.P., Rule 4 regarding the requirement of timely service of the complaint. Failure to timely serve summons and complaint may result in the imposition of sanctions, including the dismissal of unserved defendants.

Id., emphasis added. 4

Because counsel fail to explain this apparent lack of diligence, the Court will presume, 5 this time only, that there were intervening events that precluded more timely service. 6

ORDER

Based upon the foregoing, the Court GRANTS the stipulation to continue the 8 scheduling conference from March 13, 2013 to April 11, 2013 at 10:00 a.m. Telephonic 9 appearances via CourtCall are authorized.

IT IS SO ORDERED.

20130212

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