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Lucero v. Ettare

United States District Court, N.D. California

June 29, 2017

JUAN LUCERO, JR., Plaintiff,
JOHN ETTARE, et al., Defendants.


          KANDIS A. WESTMORE United States Magistrate Judge.

         On June 12, 2015, Plaintiff Juan Lucero, Jr. filed the instant case, asserting violations of his civil rights. (Dkt. No. 1.) On June 23, 2017, the Court vacated the trial set for June 26, 2017; this was the second time the Court was required to vacate the trial on the eve of trial, due to Plaintiff's actions. (See Dkt. Nos. 101, 111.) For the reasons stated below, this case is DISMISSED WITH PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b).

         I. BACKGROUND

         This is a civil rights action, where Plaintiff alleges claims for false arrest and excessive force based on his arrest by the Berkeley Police Department on September 7, 2013. Trial on Plaintiff's claims was originally scheduled for September 26, 2016. On September 21, 2016, however, Plaintiff filed an application for petition of writ of habeas corpus ad testificandum, due to Plaintiff being detained in Santa Rita County jail on an unrelated criminal matter. (Dkt. No. 97.) Although the Court granted the petition, Plaintiff informed the Court that Plaintiff's presence at the trial could not be guaranteed due to Plaintiff's required presence before the state court on the criminal charges. (Dkt. No. 100.) Due to Plaintiff's inability to attend the trial, on September 23, 2016, the Court vacated the September 26, 2016 trial date. (Dkt. No. 102.)

         On November 7, 2016, the parties informed the Court that Plaintiff had been released from custody, and requested a case management conference to set a new trial date. (Dkt. No. 103.) Following the case management conference, the Court set a trial date for June 26, 2017. (Dkt. No. 108.)

         On June 22, 2017, Plaintiff's counsel informed the Court that Plaintiff had failed to attend a meeting to discuss the trial with counsel. Plaintiff's counsel also stated that he was having difficulty contacting Plaintiff, and that he intended to move to withdraw as counsel. In light of these representations, the Court set a status conference for the following day. In the order, the Court stated: "Plaintiff must personally appear at the hearing to explain if he intends to prosecute the case. The Court is also not inclined to continue the trial date a second time." (Dkt. No. 110.)

         On June 23, 2017, the Court held a status conference, at which Plaintiff failed to personally appear. Plaintiff had apparently been in the courtroom just before the status conference, when he had taken a phone call; according to Defendants' counsel, Plaintiff told the caller, "Hey, it's over. Just come get me. Bye." Plaintiff then left the courtroom moments before the undersigned took the bench. The courtroom deputy looked for Plaintiff outside of the courtroom and in the downstairs lobby, but was unable to find Plaintiff. Plaintiff's counsel also called Plaintiff's cell phone, but only received an automated message that Plaintiff had not set up a voicemail box.

         During the hearing, Plaintiff's counsel informed the Court that this was the first time he had seen or spoken to Plaintiff since a settlement conference on September 8, 2016. His office had only been able to contact Plaintiff on Monday to set up the client meeting, for which Plaintiff failed to show up. Plaintiff's counsel stated that he would not have sufficient time to prepare Plaintiff for trial, and also noted a possible ethical conflict.

         Defendants' counsel stated that she was unwilling to agree to vacating the June 26, 2017 trial without dismissing the case, due to the time and resources Defendants had already spent on preparing for both the September 26, 2016 and June 26, 2017 trials. Defendants' counsel explained that many of the witnesses did not work for the City of Berkeley, and had been required to take time off work twice already, to attend trial. Defendant Howe, for example, had already taken a week off in September and another week off in June without pay, in order to attend the two trials.

         In light of Plaintiff's failure to personally appear at the status conference, the Court once again vacated the trial date on the Friday before the trial was scheduled to begin. (Dkt. No. 111.)

         On June 27, 2017, Plaintiff's counsel filed a motion to withdraw as counsel. (Dkt. No. 112.)


         Federal Rule of Civil Procedure 41(b) states:

If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule--except for lack of jurisdiction, improper venue, or ...

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