Scott v. Heredia

Opinion

DESIRAEE SCOTT, et al., Case No. 1:24-cv-01067-KES-CDB

Plaintiffs, ORDER DISCHARGING ORDER TO

SHOW CAUSE v.

(Doc. 17) ANTONIA HEREDIA, et al.,

ORDER EXTENDING NUNC PRO TUNC Defendants. PLAINTIFFS’ DEADLINE TO FILE PROOF

OF SERVICE FOR CYNTHIA BERTRAND AND DIRECTING DISMISSAL OF CERTAIN DEFENDANTS

ORDER CONTINUING THE MANDATORY SCHEDULING CONFERENCE TO MAY 16, 2025, AT 9:00 A.M.

ORDER DIRECTING PLAINTIFFS TO EFFECT SERVICE OF THIS ORDER AND TO FILE PROOF OF SERVICE

FIVE-DAY DEADLINE

Background Plaintiffs Desiraee Scott, Johnathan Williams, and minors S.W. and D.W. through their guardian ad litem Desiraee Scott (collectively, “Plaintiffs”), initiated this action with the filing of a complaint on September 7, 2024. (Doc. 1). Plaintiffs thereafter were granted status to proceed in forma pauperis. (Doc. 12). On March 10, 2025, the Court ordered Plaintiffs to show cause (“OSC”) in writing within three days why sanctions should not be imposed – including dismissal of any unserved Defendant or this action in its entirety – for Plaintiffs’ failure to prosecute, failure to serve the summonses and complaint in a timely manner, and failure to promptly file proof of service. (Doc. 17). Additionally, the Court continued the scheduling conference to April 16, 2025, at 9:00 a.m. and ordered Plaintiffs to serve a copy of the OSC on Defendants within three (3) days of its entry and promptly file proof of service thereof. On March 13, 2025, Plaintiffs filed their response to the OSC. (Doc. 18). Discussion Here, Plaintiffs’ counsel attests that this is his first case in the Eastern District of California and that he was unfamiliar with the procedure for issuing summons in this district, as well as for service of process by the U.S. Marshals Service. Counsel states that in a separate federal district where he practices, in cases involving indigent Plaintiffs like the instant action, the summonses are submitted to the court and the court automatically assigns the U.S. Marshals to serve them. He avers that the electronic filing system in this district does not offer such an option and when he contacted the Clerk of the Court, he was told to wait for the Court to issue summonses and for the U.S. Marshals to serve the Defendants. He represents that he did not receive notification of the issuance of the summons (Docs. 14, 15) and did not see any phone alert of the issuance of the case documents (Doc. 16), only seeing them upon receiving the OSC. (Doc. 18-1 at 2). Counsel further attests that he has served Defendants Antonia Heredia, Maria Tinoco, Dizander Guerrero, Maira Puente, Ashley Bryant, and Fatima Dee. He represents that he does not have the correct address for Cynthia Bertrand, having attempted service twice in California City and once in Lancaster. He represents that Bisola Awaye has moved out of state and that Carole Allen and Desire Lopez were misidentified. As such, he avers that Awaye, Allen, and Lopez will be dismissed. Id. at 3. In light of the representations by counsel for Plaintiffs in responding to the Court’s OSC, the Court concludes that counsel’s conduct cited in the OSC is the result of excusable neglect. See In re Veritas Software Corp. Sec. Litig., 496 F.3d 962, 973 (9th Cir. 2007). Accordingly, the Court will discharge its March 10, 2025, order to show cause (Doc. 17). In their response (Doc. 18), Plaintiffs represent that service was completed upon Defendant Antonia Heredia. However, Plaintiffs have not filed any executed summons evidencing such (cf. Docs. 19-24); accordingly, Plaintiffs will be directed to file a proof of service/summons returned executed. Conclusion and Order Based on the foregoing, it is HEREBY ORDERED that: 1. The Court’s order to show cause (Doc. 17) is DISCHARGED; 2. Plaintiffs’ deadline for filing proof of service of the summons and complaint on Defendant Cynthia Bertrand is extended nunc pro tunc by 30 days to April 14, 2025; 3. Plaintiffs shall file notices of dismissal of Defendants Carole Allen, Bisola Awaye, and Desire Lopez no later than April 14, 2025; 4. Plaintiffs shall file executed summons as to Defendant Antonia Heredia within five (3) days of entry of this order. 5. To facilitate service and permit the pleadings to settle, the scheduling conference previously set for April 16, 2025, is CONTINUED to May 16, 2025, at 9:00 a.m. 6. Plaintiffs shall serve a copy of this order on Defendants within five (5) days of entry of this order and promptly file proof of service thereof. IT IS SO ORDERED. ll Dated: _March 14, 2025 | nnd Rr UNITED STATES MAGISTRATE JUDGE