Valenzuela v. United States Postal Service ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SAMANTHA XOCHILT VALENZUELA, Case No. 1:24-cv-01061-JLT-CDB 12 Plaintiff, ORDER TO SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED 13 v. FOR PLAINTIFF’S FAILURE TO PROSECUTE THIS ACTION AND TO 14 UNITED STATES POSTAL SERVICE, et al., COMPLY WITH THE COURT’S ORDERS 15 Defendants. ORDER CONTINUING THE MANDATORY SCHEDULING 16 CONFERENCE 17 ORDER DIRECTING PLAINTIFF TO EFFECT SERVICE OF THIS ORDER AND 18 TO FILE PROOF OF SERVICE 19 FIVE-DAY DEADLINE 20 21 22 Plaintiff Samantha Xochilt Valenzuela (“Plaintiff”) initiated this action with the filing of 23 a complaint on September 5, 2024. (Doc. 1). The following day, the Clerk of the Court issued 24 summonses and the Court entered an order setting a mandatory scheduling conference for 25 December 2, 2024. (Docs. 4-6). The Court’s order directed Plaintiff to “diligently pursue 26 service of summons and complaint” and “promptly file proofs of service.” (Doc. 6 at 1). The 27 order further advised Plaintiff that failure to diligently prosecute this action “may result in the 28 imposition of sanctions, including the dismissal of unserved defendants.” Id. To date, Plaintiff 1 has not filed proofs of service, and no Defendant has appeared in the action. 2 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 3 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 4 sanctions…within the inherent power of the Court.” The Court has the inherent power to control 5 its docket and may, in the exercise of that power, impose sanctions where appropriate, including 6 dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). 7 In addition, Rule 4(m) of the Federal Rules of Civil Procedure provides: “If a defendant 8 is not served within 90 days after the complaint is filed, the court - on motion or on its own after 9 notice to the plaintiff - must dismiss the action without prejudice against that defendant or order 10 that service be made within a specified time.” Fed. R. Civ. P. 4(m). Absent a showing of good 11 cause, failure to comply with Rule 4(m) requires dismissal of any unserved defendant. 12 The Court takes judicial notice that this is not the first instance Plaintiff’s Counsel 13 Jonathan Bakhsheshian has been admonished about his failure to comply with the Court’s orders 14 and Rule 4(m) in connection with effecting service of process.. See Flores v. United States, et 15 al., No. 1:23-cv-01742-KES-CDB (Doc. 9). In the face of the Court’s previous admonishment, it 16 appears Plaintiff’s Counsel continues to cavalierly disregard orders of the Court and the Federal 17 Rules of Civil Procedure. Accordingly, the imposition of sanctions appears particularly 18 appropriate under these circumstances. 19 Conclusion and Order 20 Based on the foregoing, IT IS HEREBY ORDERED that within five (5) days of entry of 21 this order, Plaintiff SHALL show cause in writing why sanctions should not be imposed – 22 including dismissal of unserved Defendants or this action in its entirety – for Plaintiff’s failure to 23 prosecute and to serve the summonses and complaint in a timely manner. Filing summonses 24 returned executed following entry of this order WILL NOT relieve Plaintiff of her obligation to 25 respond to this order in writing. 26 IT IS FURTHER ORDERED that the scheduling conference previously set for December 27 2, 2024, is CONTINUED to January 30, 2025 at 10:30 a.m. 28 And IT IS FURTHER ORDERED that Plaintiff shall serve a copy of this order on 1 || Defendants within five (5) days of entry of this order and promptly file proof of service thereof. 2 Any failure by Plaintiff to timely respond to this order to show cause will result in 3 || the imposition of sanctions, including a recommendation to dismiss this action. 4 || 1T IS SO ORDERED. Dated: _November 22, 2024 | nnd Rr 6 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28