Alford v. United States ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARK ALFORD, Case No. 1:22-cv-01056-ADA-CDB 12 Plaintiff, ORDER DISCHARGING ORDER TO SHOW CAUSE, WITHDRAWING 13 v. FINDINGS AND RECOMMENDATIONS AND RESETTING INITIAL SCHEDULING 14 UNITED STATES OF AMERICA, CONFERENCE 15 Defendant. (ECF Nos. 7-8). 16 17 On August 19, 2022, Plaintiff Mark Alford (“Plaintiff”) filed a complaint against 18 Defendant United States of America (“Defendant”). (ECF No. 1). That same date, the Clerk of 19 Court issued a summons, and an order was entered directing Plaintiff to diligently pursue service 20 and promptly file proof of service of the summons and complaint. (ECF Nos. 2, 4). The Court 21 noted failure to timely serve the summons and complaint may result in the imposition of 22 sanctions, including the dismissal of unserved defendants. (ECF No. 4 at 1) (citing F.R. Civ. P. 23 Rule 4). 24 On October 31, 2022, the Court issued a show cause order for Plaintiff’s failure to 25 prosecute this action and to comply with the Court’s orders. (ECF No. 7). The Court noted in 26 its order that Plaintiff had more than two months to serve and file proofs of service of the 27 summons and complaint but had failed to do so. Id. at 1. The Court provided Plaintiff three weeks to respond to the Court’s show cause order and continued the mandatory scheduling 1 conference to January 10, 2023. Id. at 2. Plaintiff failed to timely respond to the Court’s order. 2 On November 23, 2022, the Court issued findings and recommendations that this action be 3 dismissed without prejudice for Plaintiff’s failure to prosecute and failure to comply with court 4 orders. (ECF No. 8). On December 14, 2022, Plaintiff through counsel timely filed objections 5 to the Court’s findings and recommendations. (ECF No. 9). Counsel for Plaintiff represented 6 that “a series of administrative errors led to not effecting service on Defendants until now or 7 attend the initial case management conference.” (ECF No. 9-1 at 2-3). Counsel for Plaintiff 8 further represented: “I have taken necessary steps to ensure that I will be aware of all electronic 9 notices from this Court and will timely and efficiently prosecute this case.” Id. at 3. On 10 December 15, 2022, Plaintiff filed proof of service as to Defendant. (ECF No. 10). 11 To determine whether neglect is excusable, a court must consider four factors: "(1) the 12 danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on 13 the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith." 14 In re Veritas Software Corp. Sec. Litig., 496 F.3d 962, 973 (9th Cir. 2007). The Court finds 15 Plaintiff’s representations in the objections to the Court’s findings and recommendations 16 demonstrate that the Plaintiff’s failure to serve the summons and complaint within the 90-day 17 period set under Rule 4(m) constitutes excusable neglect. Plaintiff’s execution and filing of proof 18 of service establishes that Plaintiff is engaged in prosecuting this action. (ECF No. 10). 19 Accordingly, IT IS HEREBY ORDERED: 20 1. The Court’s October 31, 2022, order to show cause (ECF No. 7) is DISCHARGED; 21 2. The Court’s Findings and Recommendations that this action be dismissed without 22 prejudice for failure to prosecute and failure to comply with a court order is 23 WITHDRAWN; and 24 3. The initial scheduling conference set for January 10, 2023, at 9:00 AM is VACATED 25 and RESET to February 23, 2023 at 9:30 AM in Bakersfield, 510 19th Street before 26 Magistrate Judge Christopher D. Baker. The parties shall appear at the conference 27 remotely via Zoom video conference, and the Zoom ID and password will be provided 1 of their obligation to file a joint scheduling report at least one week prior to the 2 conference and the report shall also be e-mailed, in Word format, to 3 CDBorders @caed.uscourts.gov. 4 5 IS SO ORDERED. 6 | Dated: _ December 20, 2022 | Mw Vv ED i UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28