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James N. Owens v. Russell Nuxoll et al

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 14, 2013

JAMES N. OWENS, PLAINTIFF,
v.
RUSSELL NUXOLL ET AL., DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

This order vacates and resets the Status (Pretrial Scheduling) Conference currently set for February 21, 2013. (Order Setting Status Conf., Dkt. No. 13 ¶ 5.)

Plaintiff, who is proceeding without counsel and in forma pauperis, filed his original complaint on June 1, 2012, alleging claims for civil assault and civil battery.*fn1 On September 20, 2012, after screening plaintiff's amended pleading (First Am. Compl., Dkt. No. 5), the undersigned ordered service of the amended pleading upon the defendants, ordered plaintiff to supply the United States Marshal with certain documents within 30 days, and ordered plaintiff to file a statement with the court confirming his submission of those documents to the U.S. Marshal. (Order, Dkt. No. 12.)

Initially, plaintiff failed to timely provide documents to the U.S. Marshal for service. However, on December 12, 2012, plaintiff filed a Motion for Extension of Time seeking an additional 30 days to provide the requisite documents to the U.S. Marshal. (Mot. for Ext. of Time, Dkt. No. 16.) Therein, plaintiff described his confusion regarding the applicable deadlines, and explained that his recent involvement as a defendant in criminal trial proceedings in state court in September and October caused him "stress" that resulted in his failure to comply with the order regarding service. (Id.) Accordingly, the undersigned granted the requested extension. (Order, Dkt. No. 17.)

Plaintiff appears to have timely complied with the Order extending his time to provide documents to the U.S. Marshal for service: on January 15, 2013, plaintiff filed a signed "Notice re: Service of Process" representing that he has provided the requisite documents to the U.S. Marshal. (Notice, Dkt. No. 18.)

However, to date, the U.S. Marshal has not filed any statements regarding the status of service of process upon the two Idaho defendants. Similarly, a review of the court's electronic docket indicates that no defendants have yet appeared in this action.

A Status (Pretrial Scheduling) Conference is currently set to occur in this case on February 21, 2013. (Order Setting Status Conf., Dkt. No. 13 ¶ 5.) However, given that the U.S. Marshal has apparently not yet completed service upon the two Idaho defendants, and given that no defendants have yet appeared in this action, it would be premature to proceed with scheduling this case for trial. The undersigned also notes that, in violation of the Eastern District Local Rules and a court order issued on September 20, 2012, plaintiff has failed to timely file a Status Report in advance of the scheduled conference.*fn2 (Order, Dkt. No. 13 ¶ 6; E.D. Local Rule 240(b).) Thus, it is unclear whether plaintiff and defendants have been in contact regarding this action, made any efforts to confer about scheduling discovery, discussed settlement possibilities, etc., such that proceeding with the conference as scheduled would waste judicial time and resources.

Accordingly, IT IS HEREBY ORDERED that: 1. The Status (Pretrial Scheduling) Conference currently set for February 21, 2013, is hereby vacated and reset for Thursday, April 4, 2013, at 10:00 a.m., in Courtroom 25.

2. At least fourteen (14) days before the Status (Pretrial Scheduling) Conference now set for Thursday, April 4, 2013, at 10:00 a.m., in Courtroom 25, the parties shall file Status Reports, and are encouraged to file a Joint Status Report, if possible. (Order, Dkt. No. 13 ¶ 6; E.D. Local Rule 240(b).)

Moreover, Eastern District Local Rule 183(a) provides, in part:

Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. All obligations placed on "counsel" by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal . . . or any other sanction appropriate under these Rules.

See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) ("Pro se litigants must follow the same rules of procedure that govern other litigants."). Case law is in accord that a district court may impose sanctions, including involuntary dismissal of a plaintiff's case pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or fails to comply with the court's orders. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court "may act sua sponte to dismiss a suit for failure to prosecute"); Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts 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); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) ("Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court."), cert. denied, 506 U.S. 915 (1992); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam) (stating that district courts have inherent power to control their dockets and may impose sanctions including dismissal), cert. denied, 479 U.S. 829 (1986).

3. At least fourteen (14) days before the Status (Pretrial Scheduling) Conference now set for Thursday, April 4, 2013, at 10:00 a.m., in Courtroom 25, the parties shall also file completed "Consent to/Decline of Jurisdiction of United States Magistrate Judge" forms so this case can be scheduled for trial before the appropriate judge. Copies of these forms can be obtained from the Clerk of the Court, and are also accessible on the court's electronic docket at Docket Number 13-1.

IT IS SO ORDERED.


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