Estate of Derrick Austin v. Kern County Sheriffs Office

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 ESTATE OF DERRICK AUSTIN, et al., Case No. 1:24-cv-00647-KES-CDB

12 Plaintiffs, ORDER TO SHOW CAUSE WHY

SANCTIONS SHOULD NOT BE IMPOSED 13 v. FOR PLAINTIFF’S FAILURE TO

PROSECUTE THIS ACTION AND TO 14 KERN COUNTY SHERIFF’S OFFICE, 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 Background 23 Plaintiffs Estate of Derrick Austin, and Lillie Wolfe and James Ledford, as successors in 24 interest and individually (“Plaintiffs”), initiated this action with the filing of a complaint on May 25 31, 2024. (Doc. 1). On June 3, 2024, the Clerk of the Court issued summonses and the Court 26 entered an order setting a mandatory scheduling conference on September 4, 2024. (Docs. 2-3). 27 The Court’s order directed Plaintiffs to “diligently pursue service of summons and complaint” 28 and “promptly file proofs of service.” (Doc. 3 at 1). The order further advised Plaintiffs that 1 failure to diligently prosecute this action “may result in the imposition of sanctions, including the 2 dismissal of unserved defendants.” Id. To date, Plaintiffs have not filed proofs of service, and 3 no Defendant has appeared in the action. 4 The Court’s order setting mandatory scheduling conference separately required the 5 parties to file a joint scheduling report one week prior to the scheduling conference (e.g., no later 6 than August 28, 2024). (Doc. 3 at 2). On August 28, 2024, Plaintiffs filed a document titled 7 “Scheduling Report.” (Doc. 8). In that document, Plaintiffs state that they “had anticipated 8 serving a First Amended Complaint (FAC) rather than the original complaint given that the 9 amendments are necessary to ensure that the complaint accurately reflects all relevant facts and 10 legal claims.” (Doc. 8 at 3). Plaintiffs also state that, “[u]pon the Court issuing summons, 11 Plaintiffs’ First Amended Complaint will be timely served pursuant to Federal Rules of Civil 12 Procedure, Rule 4(m).” Id. at 4. 13 Governing Authority 14 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 15 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 16 sanctions…within the inherent power of the Court.” The Court has the inherent power to control 17 its docket and may, in the exercise of that power, impose sanctions where appropriate, including 18 dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). 19 In addition, Rule 4(m) of the Federal Rules of Civil Procedure provides: “If a defendant 20 is not served within 90 days after the complaint is filed, the court - on motion or on its own after 21 notice to the plaintiff - must dismiss the action without prejudice against that defendant or order 22 that service be made within a specified time.” Fed. R. Civ. P. 4(m). Absent a showing of good 23 cause, failure to comply with Rule 4(m) requires dismissal of any unserved defendant. 24 Discussion 25 Plaintiffs failed to comply with this Court’s order to diligently pursue service of the 26 summons and complaint. Instead, based on counsel’s representations in the “Scheduling 27 Report,” Plaintiffs purposefully delayed service in light of their intention of filing an amended 28 complaint. 1 Plaintiffs may be relieved of the sanction of dismissal of unserved defendants within the 2 || 90-day period under Rule 4(m) through a showing of “good cause.” The Advisory Committee 3 || Notes to the 2015 amendment to Rule 4(m) explain that “[m]ore time may be needed, for 4 || example, when a request to waive service fails, a defendant is difficult to serve, or a marshal is to 5 || make service in an inf forma pauperis action.” None of those circumstances exist here and 6 || Plaintiff’s tactical preference of delaying service in anticipation of filing an amended pleading 7 || does not excuse them of their obligation under Rule 4(m) and this Court’s order to diligently and 8 || timely complete service. Given that the first amended complaint does not add new parties or 9 || claims (see Doc. 7), there simply is no showing why Plaintiffs could not have complied with this 10 || Court’s order to diligently complete service. 11 || Conclusion and Order 12 Based on the foregoing, IT IS HEREBY ORDERED that within five (5) days of entry of 13 || this order, Plaintiffs SHALL show cause in writing why sanctions should not be imposed — 14 || including dismissal of unserved Defendants or this action in its entirety — for Plaintiffs’ failure to 15 || prosecute, to serve the summonses and complaint in a timely manner, and to timely file a joint 16 || scheduling report. Filing summonses returned executed following entry of this order WILL 17 || NOT relieve Plaintiffs of their obligation to respond to this order in writing. 18 IT IS FURTHER ORDERED that the scheduling conference previously set for 19 || September 4, 2024 is CONTINUED to October 24, 2024 at 9:30 a.m. 20 IT IS FURTHER ORDERED that Plaintiffs shall serve a copy of this order on 21 || Defendants within five (5) days of entry of this order and promptly file proof of service thereof. 22 Any failure by Plaintiffs to timely respond to this order to show cause will result in the 23 || imposition of sanctions, including a recommendation to dismiss this action. 24 || TT IS SO ORDERED. * Dated: _ August 29, 2024 | V Vv D i 26 UNITED STATES MAGISTRATE JUDGE 27 28