1 2 3 6 7 MICHELLE SOLOBAY, Case No. 24-cv-04186-KAW
8 Plaintiff, THIRD ORDER TO SHOW CAUSE 9 v.
11 Defendant.
12 13 This case has been pending since July 11, 2024. On that date, Plaintiff Michelle Solobay 14 filed a complaint against the Presidio Trust, asserting a single claim under the Federal Tort Claims 15 Act (“FTCA”). (Compl., Dkt. No. 1.) Confusingly, the complaint lists Plaintiff Solobay as acting 16 on behalf of herself and as guardian ad litem for J.S., but the caption does not identify J.S. as a 17 plaintiff. 18 On July 25, 2024, Plaintiff Solobay filed a certificate of service, stating that the Presidio 19 Trust had been served. (Dkt. No. 7.) Because the case was brought under the FTCA, however, the 20 only proper defendant was the United States, not the Presidio Trust. See Lance v. United States, 21 70 F.3d 1093, 1094 (9th Cir. 1995). 22 On September 25, 2024, the United States appeared for the limited purpose of requesting 23 that the October 15, 2024 case management conference be continued because the United States 24 had not yet been served. (Dkt. No. 8.) After Plaintiff Solobay failed to respond or file her case 25 management conference statement, the Court continued the case management conference to 26 December 10, 2024, with the case management conference statement due on December 3, 2024. 27 (Dkt. No. 9.) 1 providing an update, stating that Plaintiff Solobay had made no further attempts to serve the 2 United States. (Dkt. No. 10.) Plaintiff Solobay again failed to respond or file a case management 3 conference statement. On December 5, 2024, the Court issued an order to show cause as to why 4 the case should not be dismissed for failure to serve the proper Defendant. (OSC, Dkt. No. 11.) 5 The Court also continued the case management conference to February 11, 2025, with the case 6 management conference statement due by February 4, 2025. (Id. at 2.) 7 On December 6, 2024, Plaintiff Solobay filed a motion to amend the complaint. (Dkt. No. 8 12.) On December 17, 2024, Plaintiff Solobay filed an amended complaint, naming the United 9 States as the defendant. (First Amended Compl. (“FAC”), Dkt. No. 14.) The caption identified 10 Plaintiff Solobay as the only plaintiff in the case, and did not identify J.S. as a plaintiff. 11 On January 24, 2025, the Court discharged the December 5, 2024 order to show cause in 12 light of the filing of the amended complaint. (Dkt. No. 18.) In so doing, it noted that Plaintiff 13 Solobay had 90 days from the date of amendment to serve Defendant, i.e., March 17, 2025. (Dkt. 14 No. 18 (citing McGuckin v. United States, 918 F.2d 811, 813 (9th Cir. 1990)).) 15 Plaintiff Solobay did not serve Defendant, nor did Plaintiff Solobay obtain a summons. 16 Rather, in its February 4, 2025 case management conference statement, Defendant stated that 17 Plaintiff Solobay had mailed a copy of the amended complaint and a draft summons (not issued by 18 the Clerk of the Court) via priority mail. (Dkt. No. 21 at 1.) Plaintiff Solobay, in turn, failed to 19 file a case management conference statement, requiring that the case management conference 20 again be continued to May 13, 2025, with case management conference statements due on May 6, 21 2025. (See Dkt. No. 22.) 22 On May 6, 2025, Defendant filed a case management conference statement, stating that it 23 had still not received any further communication from Plaintiff Solobay regarding service. On 24 May 7, 2025, Plaintiff Solobay filed a late case management conference statement, asserting that a 25 summons had been issued on July 12, 2024 (before Defendant United States was substituted in as 26 the correct defendant). (Dkt. No. 31 at 1.) Plaintiff Solobay also blamed “absences from 27 Plaintiff’s counsel’s office” for the delays. (Id.) 1 34.) The Court noted that the July 12, 2024 summons was directed at the Presidio Trust, rather 2 than the Untied States. (Id. at 2.) The Court also noted that Plaintiff Solobay had asserted she was 3 the guardian ad litem for J.S., but that J.S. was not listed as a plaintiff in the amended complaint 4 and that Plaintiff Solobay had never moved for the Court to appoint her as a guardian ad litem. 5 (Id.) Accordingly, the Court ordered Plaintiff Solobay to show cause why the case should not be 6 dismissed for failure to prosecute by: (1) serving Defendant properly, and (2) explaining why 7 Plaintiff Solobay had failed to comply with the service deadline for almost two months. (Id.) The 8 Court again continued the case management conference to June 24, 2025. 9 On May 14, 2025, Plaintiff Solobay filed a petition to be appointed as guardian ad litem 10 for N.M.S. (Dkt. No. 35.) As an exhibit to the petition, Plaintiff Solobay inexplicably filed a 11 motion to amend the pleadings to identify the correct minor plaintiff, stating that N.M.S. was the 12 correct party rather than J.S. (Dkt. No. 35-2.) Plaintiff Solobay also improperly and repeatedly 13 identified N.M.S. by her full name in contravention of Federal Rule of Civil Procedure 5.2. As it 14 was entirely unclear that there was any plaintiff other than Plaintiff Solobay, the Court issued an 15 order: (1) denying Plaintiff Solobay’s petition to appoint a guardian ad litem and amend the 16 pleadings without prejudice, (2) requiring Plaintiff Solobay to file an amended complaint that 17 identified the correct minor plaintiff, as well as a motion for appointment of a guardian ad litem, 18 and (3) extending the order to show cause deadline to June 18, 2025. (Dkt. No. 36.) The Court 19 also directed the Clerk’s office to seal the guardian ad litem filings due to the inclusion of 20 N.M.S.’s identifying information. (Id. at 2.) 21 On June 4, 2025, Plaintiff filed the second amended complaint, which identified Plaintiffs 22 Solobay and N.M.S. as the parties in the case. (Second Amended Compl. (“SAC”), Dkt. No. 38.) 23 The complaint, however, included factual allegations that were patently deficient, as it included 24 placeholders instead of actual facts. (See SAC ¶¶ 8 ((“On or about [Insert Date], Plaintiffs were 25 lawfully present on properly located within the Presidio Trust”), 9 (“While on said property, 26 N.M.S., a minor, sustained serious personal injuries as a direct result of dangerous conditions on 27 the premises, including but not limited to [describe specific hazard, e.g., inadequately maintained 1 deficient allegations, and permitted Plaintiff to file a complete amended complaint. (Dkt. No. 40 2 at 2.) The Court again extended the order to show cause deadline and continued the case 3 management conference. (Id.) 4 On June 12, 2025, Plaintiff Solobay filed a third amended complaint which again identified 5 Plaintiff Solobay as the only plaintiff in the caption. (Third Amended Compl. (“TAC”), Dkt. No. 6 41.) The complaint also again identified J.S. as the affected minor, not N.M.S. 7 This case has been pending for almost a year, and the complaint is still defective. 8 Plaintiff’s counsel, Dylan Hackett, has filed four complaints in this case, each of which included 9 significant errors, including: (1) failing to identify the correct Defendant, (2) failing to name all 10 Plaintiffs, (3) failing to identify the correct minor Plaintiff, and (4) failing to include facts rather 11 than placeholders. Attorney Hackett also failed to comply with multiple deadlines, including 12 deadlines to serve the case on Defendant and file case management conference statements. The 13 Court also notes that other filings have been defective.
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1 2 3 6 7 MICHELLE SOLOBAY, Case No. 24-cv-04186-KAW
8 Plaintiff, THIRD ORDER TO SHOW CAUSE 9 v.
11 Defendant.
12 13 This case has been pending since July 11, 2024. On that date, Plaintiff Michelle Solobay 14 filed a complaint against the Presidio Trust, asserting a single claim under the Federal Tort Claims 15 Act (“FTCA”). (Compl., Dkt. No. 1.) Confusingly, the complaint lists Plaintiff Solobay as acting 16 on behalf of herself and as guardian ad litem for J.S., but the caption does not identify J.S. as a 17 plaintiff. 18 On July 25, 2024, Plaintiff Solobay filed a certificate of service, stating that the Presidio 19 Trust had been served. (Dkt. No. 7.) Because the case was brought under the FTCA, however, the 20 only proper defendant was the United States, not the Presidio Trust. See Lance v. United States, 21 70 F.3d 1093, 1094 (9th Cir. 1995). 22 On September 25, 2024, the United States appeared for the limited purpose of requesting 23 that the October 15, 2024 case management conference be continued because the United States 24 had not yet been served. (Dkt. No. 8.) After Plaintiff Solobay failed to respond or file her case 25 management conference statement, the Court continued the case management conference to 26 December 10, 2024, with the case management conference statement due on December 3, 2024. 27 (Dkt. No. 9.) 1 providing an update, stating that Plaintiff Solobay had made no further attempts to serve the 2 United States. (Dkt. No. 10.) Plaintiff Solobay again failed to respond or file a case management 3 conference statement. On December 5, 2024, the Court issued an order to show cause as to why 4 the case should not be dismissed for failure to serve the proper Defendant. (OSC, Dkt. No. 11.) 5 The Court also continued the case management conference to February 11, 2025, with the case 6 management conference statement due by February 4, 2025. (Id. at 2.) 7 On December 6, 2024, Plaintiff Solobay filed a motion to amend the complaint. (Dkt. No. 8 12.) On December 17, 2024, Plaintiff Solobay filed an amended complaint, naming the United 9 States as the defendant. (First Amended Compl. (“FAC”), Dkt. No. 14.) The caption identified 10 Plaintiff Solobay as the only plaintiff in the case, and did not identify J.S. as a plaintiff. 11 On January 24, 2025, the Court discharged the December 5, 2024 order to show cause in 12 light of the filing of the amended complaint. (Dkt. No. 18.) In so doing, it noted that Plaintiff 13 Solobay had 90 days from the date of amendment to serve Defendant, i.e., March 17, 2025. (Dkt. 14 No. 18 (citing McGuckin v. United States, 918 F.2d 811, 813 (9th Cir. 1990)).) 15 Plaintiff Solobay did not serve Defendant, nor did Plaintiff Solobay obtain a summons. 16 Rather, in its February 4, 2025 case management conference statement, Defendant stated that 17 Plaintiff Solobay had mailed a copy of the amended complaint and a draft summons (not issued by 18 the Clerk of the Court) via priority mail. (Dkt. No. 21 at 1.) Plaintiff Solobay, in turn, failed to 19 file a case management conference statement, requiring that the case management conference 20 again be continued to May 13, 2025, with case management conference statements due on May 6, 21 2025. (See Dkt. No. 22.) 22 On May 6, 2025, Defendant filed a case management conference statement, stating that it 23 had still not received any further communication from Plaintiff Solobay regarding service. On 24 May 7, 2025, Plaintiff Solobay filed a late case management conference statement, asserting that a 25 summons had been issued on July 12, 2024 (before Defendant United States was substituted in as 26 the correct defendant). (Dkt. No. 31 at 1.) Plaintiff Solobay also blamed “absences from 27 Plaintiff’s counsel’s office” for the delays. (Id.) 1 34.) The Court noted that the July 12, 2024 summons was directed at the Presidio Trust, rather 2 than the Untied States. (Id. at 2.) The Court also noted that Plaintiff Solobay had asserted she was 3 the guardian ad litem for J.S., but that J.S. was not listed as a plaintiff in the amended complaint 4 and that Plaintiff Solobay had never moved for the Court to appoint her as a guardian ad litem. 5 (Id.) Accordingly, the Court ordered Plaintiff Solobay to show cause why the case should not be 6 dismissed for failure to prosecute by: (1) serving Defendant properly, and (2) explaining why 7 Plaintiff Solobay had failed to comply with the service deadline for almost two months. (Id.) The 8 Court again continued the case management conference to June 24, 2025. 9 On May 14, 2025, Plaintiff Solobay filed a petition to be appointed as guardian ad litem 10 for N.M.S. (Dkt. No. 35.) As an exhibit to the petition, Plaintiff Solobay inexplicably filed a 11 motion to amend the pleadings to identify the correct minor plaintiff, stating that N.M.S. was the 12 correct party rather than J.S. (Dkt. No. 35-2.) Plaintiff Solobay also improperly and repeatedly 13 identified N.M.S. by her full name in contravention of Federal Rule of Civil Procedure 5.2. As it 14 was entirely unclear that there was any plaintiff other than Plaintiff Solobay, the Court issued an 15 order: (1) denying Plaintiff Solobay’s petition to appoint a guardian ad litem and amend the 16 pleadings without prejudice, (2) requiring Plaintiff Solobay to file an amended complaint that 17 identified the correct minor plaintiff, as well as a motion for appointment of a guardian ad litem, 18 and (3) extending the order to show cause deadline to June 18, 2025. (Dkt. No. 36.) The Court 19 also directed the Clerk’s office to seal the guardian ad litem filings due to the inclusion of 20 N.M.S.’s identifying information. (Id. at 2.) 21 On June 4, 2025, Plaintiff filed the second amended complaint, which identified Plaintiffs 22 Solobay and N.M.S. as the parties in the case. (Second Amended Compl. (“SAC”), Dkt. No. 38.) 23 The complaint, however, included factual allegations that were patently deficient, as it included 24 placeholders instead of actual facts. (See SAC ¶¶ 8 ((“On or about [Insert Date], Plaintiffs were 25 lawfully present on properly located within the Presidio Trust”), 9 (“While on said property, 26 N.M.S., a minor, sustained serious personal injuries as a direct result of dangerous conditions on 27 the premises, including but not limited to [describe specific hazard, e.g., inadequately maintained 1 deficient allegations, and permitted Plaintiff to file a complete amended complaint. (Dkt. No. 40 2 at 2.) The Court again extended the order to show cause deadline and continued the case 3 management conference. (Id.) 4 On June 12, 2025, Plaintiff Solobay filed a third amended complaint which again identified 5 Plaintiff Solobay as the only plaintiff in the caption. (Third Amended Compl. (“TAC”), Dkt. No. 6 41.) The complaint also again identified J.S. as the affected minor, not N.M.S. 7 This case has been pending for almost a year, and the complaint is still defective. 8 Plaintiff’s counsel, Dylan Hackett, has filed four complaints in this case, each of which included 9 significant errors, including: (1) failing to identify the correct Defendant, (2) failing to name all 10 Plaintiffs, (3) failing to identify the correct minor Plaintiff, and (4) failing to include facts rather 11 than placeholders. Attorney Hackett also failed to comply with multiple deadlines, including 12 deadlines to serve the case on Defendant and file case management conference statements. The 13 Court also notes that other filings have been defective. For example, in Attorney Hackett’s 14 response to the second order to show cause, Attorney Hackett stated that “[p]roofs of service by 15 certified mail are being concurrently filed with this response.” (Dkt. No. 39 at 2.) No such proof 16 of service was filed until June 19, 2025, when Attorney Chris Quattrociocche -- who is not listed 17 on the docket (despite asserting that he is counsel of record) -- filed a declaration with mailing 18 receipts. (See Dkt. No. 42.) Likewise, in Plaintiff’s motion to appoint a guardian ad litem, 19 Attorney Hackett referred to the accompanying declaration of Plaintiff Solobay, but no such 20 declaration was filed. (See Dkt. No. 38 at 1.) Attorney Hackett also referred to Civil Local Rule 21 17-1, which does not exist. (See id. at 2.) This is in addition to Attorney Hackett filing documents 22 with N.M.S.’s identifying information, requiring the Court to seal the documents. 23 In turn, the Court has been required to issue multiple orders identifying the errors and 24 setting compliance deadlines in an attempt to move the case forward, only for Attorney Hackett to 25 continue making the same errors. (See Dkt. Nos. 11, 34, 36, 40.) The Court should not be 26 required to waste its limited judicial resources on correcting basic errors; rather, it is Attorney 27 Hackett’s obligation to competently prosecute the case. Indeed, the Court cannot recall when it 1 It is unclear if Attorney Hackett is willing or able to give this case the time, resources, and 2 attention necessary to allow it to move forward. The fact that Attorney Hackett continues to 3 || blame “administrative oversight and staffing interruptions” is also concerning. (Dkt. No. 39 at 2.) 4 || Accordingly, the Court ORDERS Attorney Hackett to show cause, by July 11, 2025, why the 5 Court should not reassign this case to a district judge with the recommendation that the case be 6 || dismissed for failure to comply with Court orders by explaining how he intends to ensure that a 7 || proper complaint is filed if he is given yet another opportunity to file what will ultimately be the 8 fourth amended complaint. By July 11, 2025, Attorney Hackett shall also explain why he should 9 || not be referred to the Court’s Standing Committee on Professional conduct given the unrelenting 10 || errors identified in this order. (See Civil Local Rules 11-1(c) (requiring that attorneys admitted as 11 a member of the bar of this Court certify knowledge of the Federal Rules of Civil Procedure and 12 || Local Rules, as well as an understanding and commitment to abide by the Standards of 13 Professional Conduct set forth in Rule 11-4), 11-4 (requiring attorneys to be familiar and comply 14 || with the standards of professional conduct, comply with the local rules, and practice with honesty, 3 15 care, and decorum), 11-6 (permitting a judge who has cause to believe that an attorney has a 16 || engaged in unprofessional conduct to refer the matter to the Standing Committee on Professional 3 17 Conduct).) 19 Dated: June 30, 2025 .
United States Magistrate Judge 22 23 24 25 26 27 28