(PC) Coffman v. Borges ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT COFFMAN, Case No. 1:23-cv-00012-CDB 12 Plaintiff, SECOND ORDER TO SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED 13 v. FOR PLAINTIFF’S FAILURE TO PROSECUTE THIS ACTION AND TO 14 BORGES, ET AL, COMPLY WITH THE COURT’S ORDERS 15 Defendants. THREE-DAY DEADLINE 16 17 Plaintiff filed a complaint on January 3, 2023. (Doc. 1). That same day, the Clerk of 18 Court issued summonses and the Court entered an Order setting a mandatory scheduling 19 conference. (Docs. 2, 3). The Order directed Plaintiff to “diligently pursue service of summons 20 and complaint” and “promptly file proofs of service.” (Doc. 3). The Order further advised 21 Plaintiff that failure to diligently prosecute this action “may result in the imposition of sanctions, 22 including the dismissal of unserved defendants.” Id. 23 On March 17, 2023, the Court ordered Plaintiff to show cause why sancitons should not 24 be imposed for Plaintiff’s failure to prosecute this action and to comply with the Court’s order. 25 (Doc. 4). Specifically, the Court noted Plaintiff had not filed proofs of service and the 26 defendants had not appeared in the action, requiring the Court to reset the upcoming scheduling 27 conference. Id. at 1. 28 On March 22, 2023, Counsel for Plaintiff filed a response to the Court’s March 17, 2023 1 order to show cause. (Doc. 5). Counsel claimed on January 25, 2023, he had requested wavier 2 of service of summons to the Office of Legal Affairs at the California Department of Corrections 3 and Rehabilitation in Sacramento (“CDCR”). Id. at 2. Counsel stated he was not focused on the 4 prosecution of this action and “lost track of the lapse of time” for the CDCR to respond. Id. 5 Counsel claimed on March 21, 2023, his local process server vendor had served copies of the 6 Summons and Complaint on the named defendants. Id. Counsel claimed he would “file the 7 completed proof of service with the Court forthwith.” Id. 8 Based on Counsel for Plaintiff’s representations, on March 23, 2023, the Court 9 discharged the March 17, 2023, order to show cause noting that Counsel’s proffered conduct 10 constituted excusable neglect. (Doc. 6). 11 However, Counsel for Plaintiff still has not filed proofs of service, despite his 12 representation to the Court more than one month ago that he would file them “forthwith,” no 13 defendants have appeared, and the Court is again compelled to re-calendar the scheduling 14 conference due to Plaintiff’s unexplained delay in perfecting process. 15 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 16 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 17 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to 18 control its docket and may, in the exercise of that power, impose sanctions where appropriate, 19 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 20 2000). 21 In addition, Rule 4(m) of the Federal Rules of Civil Procedure provides: “If a defendant 22 is not served within 90 days after the complaint is filed, the court - on motion or on its own after 23 notice to the plaintiff - must dismiss the action without prejudice against that defendant or order 24 that service be made within a specified time.” Fed. R. Civ. P. 4(m). Absent a showing of good 25 cause, failure to comply with Rule 4(m) may result in dismissal of this action. 26 Based on the foregoing, IT IS HEREBY ORDERED that Counsel of Plaintiff shall show 27 cause in writing within three days why sanctions, including monetary sanctions or dismissal, 28 should not be imposed for Plaintiff’s failure to file the completed proofs of service with this 1 |} Court. 2 IT IS FURTHER ORDERED that the scheduling conference previously set for May 17, 3 || 2023, is CONTINUED to August 8, 2023 at 10:00 a.m. 4 Any failure by Plaintiff to respond to this Order to Show Cause may result in dismissal of 5 || this action. 6 IS SO ORDERED. "|| Dated: _April 28, 2023 | D bo 8 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28