Maxwell v. Pacione

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SHAWN MAXWELL, Case No. 1:24-cv-00409-JLT-CDB 12 Plaintiff, ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED 13 v. FOR PLAINTIFF’S FAILURE TO TIMELY FILE AN AMENDED COMPLAINT 14 LISA PACIONE, et al., (Doc. 52) 15 Defendants. 14-DAY DEADLINE 16 17

18 Background 19 On October 10, 2024, the Court entered an order adopting the assigned magistrate judge’s 20 findings and recommendations to dismiss with prejudice the majority of Plaintiff Shawn Maxwell’s 21 claims, excepting only his Monell claims and state law causes of action against County of Kern 22 defendants, which the Court dismissed without prejudice. (Doc. 52). The Court ordered: “Plaintiff 23 is GRANTED leave to amend his complaint to the extent of pleading Monell claims and any 24 cognizable state law causes of action against the County Defendants. Plaintiff SHALL FILE any 25 such amended complaint within 21 days of entry of this order.” Id. at 3 (emphasis in original). 26 Plaintiff did not timely file an amended complaint. However, on November 1, 2024, 27 Plaintiff filed a notice of appeal of this action to the Ninth Circuit Court of Appeals (Doc. 55) and 28 a motion for stay of execution of all orders pending appeal (Doc. 54). On November 25, 2024, 1 the Ninth Circuit dismissed Plaintiff’s appeal for lack of jurisdiction (Doc. 60), and the mandate 2 issued on December 17, 2024 (Doc. 63). Accordingly, on December 18, 2024, the Court denied 3 Plaintiff’s motion to stay as moot. (Doc. 64). 4 Even assuming arguendo that the full 21-day period within which Plaintiff was required to 5 file any amended complaint was subject to tolling during the pendency of the appeal and until the 6 denial as moot of Plaintiff’s motion to stay, more than 21 days have passed since Plaintiff’s 7 motion for stay was denied and Plaintiff has failed to file anything with the Court – let alone an 8 amended complaint curing deficiencies previously noted by the Court in Plaintiff’s asserted 9 Monell claims or related state law causes of action against the County Defendants over which the 10 Court could exercise supplemental jurisdiction. 11 Federal Rule of Civil Procedure 41(b) allows the Court to dismiss an action if the plaintiff 12 fails to comply with a court order. Fed. R. Civ. P. 41(b).1 “By its plain text, a Rule 41(b) 13 dismissal . . . requires a court order with which an offending plaintiff failed to comply.” Applied 14 Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 891 (9th Cir. 2019) (internal quotation marks, 15 citation, and footnote omitted). Prior to recommending dismissal, the undersigned will extend to 16 Plaintiff one opportunity to explain in writing why this action should not be dismissed in its 17 entirety with prejudice and the case closed for Plaintiff’s failure to comply with Court orders and 18 to prosecute this action. 19 20 Remainder of This Page Intentionally Left Blank

21 22 23 24 25 26 27 1 Similarly, this District’s Local Rule 110 states that “[f]ailure of counsel or of a party to comply with these 28 Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized 1 Conclusion and Order 2 Accordingly, it is HEREBY ORDERED, within 14 days of the date of service of this 3 | order, Plaintiff SHALL either (1) show cause in writing why this action should not be dismissed 4 | in light of his failure to timely file an amended complaint, to comply with the Court’s orders, and 5 || to prosecute this action, or (2) file a notice of dismissal under Federal Rule of Civil Procedure 6 | 41(ad(AD@). 7 Failure to respond to the Court’s order will result in a recommendation that this 8 | action be dismissed with prejudice in its entirety and the case closed. 9 | IT IS SOORDERED. | Dated: _ January 22, 2025 | nnd Rr 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28