Opinion
23-cv-04701-RMI
01-19-2024
ROBERT BRIONES, Plaintiff, v. MENDOCINO CAFE, INC., Defendant.
ORDER TO SHOW CAUSE
ROBERT M. ILLMAN United States Magistrate Judge.
On September 13, 2023, Plaintiff Robert Briones filed a complaint against Defendant Mendocino Cafe for certain violations of the Americans with Disabilities Act and corresponding California Civil Code. Pl.'s Compl. (Dkt. 1) at 6-9. Defendant was served on September 22, 2024 (see dkt. 7) and Plaintiff consented to the jurisdiction of a magistrate judge on September 28, 2023 (dkt. 8). Defendant has yet to file an answer or consent to the undersigned's jurisdiction.
On December 12, 2023, the court held the initial case management conference, but neither party appeared. (Dkt. 10). Later that day, Plaintiff filed a statement explaining the parties' absence. See (Dkt. 9). Plaintiff explained that since service of the Complaint, the parties have engaged in settlement discussions, including some limited informal discovery on the part of Defendant. Id. at 2. Plaintiff informed the court that he would soon file a notice of settlement, or, should settlement discussions fail, Defendant would shortly file an answer. Id. However, nothing has been filed in this matter since that notice on December 12th.
Rule 41(b) of the Federal Rules of Civil Procedure permits the court to dismiss actions for failure to prosecute and failure to comply with court orders. See Fed.R.Civ.P. 41(b); see also Olivia v. Sullivan, 958 F.2d 272, 273 (9th Cir. 1992) (The court has “inherent power” to control its docket and may “impose sanctions, including dismissal, in the exercise of that discretion.”). While it is not the undersigned's intention to dismiss this action based on this record and Plaintiff's statement regarding the parties attempts to informally resolve the matter, because the undersigned does not have full consent of all of the parties and there have been no motions to extend time for service and no other filings on the record concerning the prosecution of this action, the undersigned must ORDER that Plaintiff show cause, within 21 days of the date of this order, as to why this matter should not be dismissed pursuant to Rule 41(b) for failure to prosecute. If the parties would like the undersigned to continue presiding over this matter, Defendant needs to execute and return the attached consent form. Without the consent of both parties, this matter will be randomly reassigned to a District Judge for all further proceedings.
IT IS SO ORDERED.
CONSENT OR DECLINATION TO MAGISTRATE JUDGE JURISDICTION
INSTRUCTIONS: Please indicate below by checking one of the two boxes whether you (if you are the party) or the party you represent (if you are an attorney in the case) choose(s) to consent or decline to magistrate judge jurisdiction in this matter. Sign this form below your selection.
[] CONSENT to Magistrate Judge Jurisdiction
In accordance with the provisions of 28 U.S.C. § 636(c), I voluntarily consent to have a United States magistrate judge conduct all further proceedings in this case, including trial and entry of final judgment. I understand that appeal from the judgment shall be taken directly to the United States Court of Appeals for the Ninth Circuit.
OR
[] DECLINE Magistrate Judge Jurisdiction
In accordance with the provisions of 28 U.S.C. § 636(c), I decline to have a United States magistrate judge conduct all further proceedings in this case and I hereby request that this case be reassigned to a United States district judge.