Weekly v. United States of America ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FRANKLIN BIRL WEEKLY, Case No. 1:22-cv-00341-JLT-SAB 12 Plaintiff, ORDER IMPOSING $50 DAILY SANCTION ON PLAINTIFF AND 13 v. PLAINTIFF’S COUNSEL 14 UNITED STATES OF AMERICA, et al., (ECF No. 15) 15 Defendants. 16 17 Franklin Birl Weekly (“Plaintiff”) filed this action on March 24, 2022, against 18 Defendants the United States of America, the City of Fresno, the County of Fresno, and the 19 California Department of Public Health. (ECF No. 1.) On the same date, requests for waiver of 20 service were sent to Defendants, and summonses were issued to Defendants. (ECF Nos. 3, 4, 5, 21 6, 7, 8.) On May 31, 2022, the Court ordered Plaintiff to file a status report given no filings were 22 made on the docket since March 24, 2022. (ECF No. 10.) On June 6, 2022, Plaintiff filed a 23 status report indicating that Defendants were just served on June 6, 2022, and proofs of service 24 should be docketed “shortly.” (ECF No. 11.) In light of the filing, on June 7, 2022, the Court 25 continued the scheduling conference set for June 15, 2022, to August 10, 2022. (ECF No. 12.) 26 the Court reminded the Plaintiff of the obligation to timely serve under Federal Rule of Civil 27 Procedure 4. See Fed. R. Civ. P. 4(m) (““If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss 1 the action without prejudice against that defendant or order that service be made within a 2 specified time.”). 3 Thereafter, on June 15, 2022, the Court dismissed Defendants City of Fresno and County 4 of Fresno from this action pursuant to Plaintiff’s notice of dismissal. (ECF Nos. 13, 14.) Thus, 5 the remaining Defendants are the United States of America, and the California Department of 6 Public Health. Despite Plaintiff stating in the last filed declaration that proofs of service would 7 be docketed “shortly,” Plaintiff did not file any proofs of service for the Defendants in this 8 action. As indicated in the order setting the mandatory scheduling conference, Plaintiff must 9 “promptly file proofs of service of the summons and complaint so the Court has a record of 10 service . . . [f]ailure to timely serve the summons and complaint may result in the imposition of 11 sanctions, including dismissal of unserved defendants.” (ECF No. 9 at 1-2.) 12 On July 16, 2022, the Court signed an order, entered on the docket on July 18, 2022, 13 requiring Plaintiff to show cause within five (5) days why sanctions should not issue for the 14 failure to prosecute this action. (ECF No. 15.) The Court expressly ordered Plaintiff to “address 15 readiness for the scheduling conference and when Defendants’ responsive pleadings are 16 currently due,” and expressly warned Plaintiff that sanctions would issue if the order was not 17 complied with. (Id.) 18 On July 19, 2022, Plaintiff filed two documents in response to the order to show cause. 19 First, a proof of service indicating that Defendant United States was served on June 6, 2022, with 20 the proof of service signed July 19, 2022. (ECF No. 16.) The second filing is a proof of service 21 indicating that the California Department of Health was served on June 6, 2022, with the proof of 22 service signed on July 19, 2022. (ECF No. 17.) Plaintiff presented no filing or written direct 23 response to the order to show cause explaining why sanctions should not issue, and did not 24 address the Court’s express requirement to address readiness for the scheduling conference. 25 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 26 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 27 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to 1 | including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2 | 2000). 3 Plaintiff did not file a direct response to the order to show cause on or before July 25, 4 | 2022. Given Plaintiff did not comply with the Court’s July 18, 2022 order, the Court shall 5 | impose monetary sanctions in the amount of $50.00 per day, beginning on July 26, 2022. 6 Accordingly, IT IS HEREBY ORDERED that Plaintiff and Plaintiff's counsel shall 7 | jointly and severally be obligated to pay the Clerk of the Court $50.00 per day, beginning on July 8 | 26, 2022, until Plaintiff files a compliant response to the Court’s July 18, 2022 order to show 9 | cause. 10 i IT IS SO ORDERED. FA. ee 12 | Dated: _ July 26, 2022 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28