Schaired v. Monterey Financial Services, Inc.

Opinion

ROBERT SCHAIRED, Case No. 22-cv-0736-BAS-MDD

Plaintiff, ORDER: v. (1) GRANTING PLAINTIFF’S COUNSEL’S MOTIONS TO INC., WITHDRAW (ECF Nos. 27, 28); Defendant. AND

(2) DIRECTING PLAINTIFF TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE

On April 4, 2023, United States Magistrate Judge Mitchell D. Dembin ordered Schaired to show cause why he should not be sanctioned for his failure to appear at an Early Neutral Evaluation and Case Management Conference scheduled that same day. (First Order to Show Cause, ECF No. 26.) Judge Dembin directed Schaired to personally appear at a hearing on April 27, 2023 or risk sanctions.1 (Id.) 1 Judge Dembin ordered Schaired’s counsel to mail the Order to Show Cause to Schaired at his Just prior to the hearing, on April 12, 2023, Schaired’s counsel—Alexander J. Taylor, Esq., and Nicholas M. Wajda, Esq.—moved to withdraw pursuant to Local Civil Rule 83.3(f)(3). (ECF Nos. 27, 28.) They attest they have been unable to establish contact with him since February 2023. They aver their numerous attempts to contact him at his last known address and phone number have been met by Schaired with silence.2 (ECF Nos. 27, 28.) In accordance with his Order to Show Cause, Judge Dembin held a hearing on April 27, 2023. Taylor, Wajda, and Defendant’s counsel all appeared telephonically. However, Schaired failed to appear, in person or otherwise. He did not file any document beforehand seeking to hold in abeyance the hearing, nor did he file any written submission after the hearing justifying his failure to appear. This Court is satisfied good cause exists to support Schaired’s counsel’s requests to be relieved of their representative duties in the instant case. See S.D. Cal. Civ.L.R. 83.3(f)(3). Accordingly, the Court GRANTS their Motions. (ECF Nos. 27, 28.) The Court now turns to the appropriate sanction for Schaired’s failures to appear at the April 27, 2023 hearing. A district court may dismiss a plaintiff’s action for his failure to prosecute or failure to comply with a court order. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (holding that a district court may dismiss an action for failure to comply with any order of the court); Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962). Here, Schaired has failed to comply with Judge Dembin’s Order to Show Cause by failing to appear at the April 27, 2023 hearing. This warrants dismissal of Schaired’s Second Amended Complaint in and of itself. See Houston v. Cnty. of San Diego, Civ. No. 06cv1285 IEG (AJB), 2008 WL 10725618, at *1, 3 (S.D. Cal. Apr. 1, 2009). However, out of an abundance of caution, this Court will give Schaired a final opportunity to resuscitate his case. Therefore, the Court again ORDERS Schaired to show cause why his case should not be dismissed pursuant to this Court’s inherent authority by 2 In compliance with Local Civil Rule 83.3(f)(3), Schaired’s counsel served their motion upon no later than May 25, 2023. Schaired may show cause by filing either: (1) a Notice of Intent indicating whether he (a) wishes to proceed with his Second Amended Complaint pro se, without the assistance of counsel, or (b) has obtained new counsel; or (2) request an extension of time to file such a Notice of Intent. The Notice of Intent must contain an explanation for Schaired’s failure to appear at the Order to Show Cause hearing on April 2023. Schaired is warned that a failure to file an adequate response to this Order on before May 25, 2023 will result in the Court dismissing this action. The Clerk of Court is DIRECTED to send a copy of this Order to Schaired’s last known address at 25 Southern Oaks Dr., Fort Stewart, Georgia 31315. IT IS SO ORDERED. / . , DATED: May 5, 2023 (Yin A (Lyohaa é United States District Judge