Opinion
No. 2:11-cv-03268-KJM-EFB
05-03-2016
JOSEPH DE VINCENZI, Plaintiff, v. CITY OF CHICO, et al., Defendants.
ORDER
On April 15, 2016, defendants City of Chico, Stephen Dyke and Mike Frakes, and plaintiff's counsel Jack Vetter submitted a joint status report for the status conference currently set for May 12, 2016. See generally Status Rpt., ECF No. 75. The status conference had been set in light of the fact that plaintiff's counsel lost contact with plaintiff in Fall 2015, and the case has not been able to progress since then due to plaintiff's absence. Id. at 2; ECF No. 71; see also ECF No. 70 (defendants unable to conduct discovery because of plaintiff's disappearance). Plaintiff's counsel filed a missing person's report in September 2015, and hired a private investigator in October 2015 to conduct a search of records in an attempt to locate his client. Status Rpt. at 2; Vetter Decl. ¶ 2 & Ex. A, ECF No. 76. The search located information on plaintiff's sister and father, but did not locate plaintiff. Vetter Decl., Ex. A. When plaintiff's counsel consulted with defendants' counsel in March 2016, he learned there is a felony warrant out for plaintiff's arrest, but plaintiff still has not been found. Vetter Decl. ¶ 3 & Ex. B.
Defendants and plaintiff's counsel now seek to dismiss the case with prejudice. Status Rpt. at 3. Under the present circumstances, however, plaintiff's counsel does not have the authority to dismiss the case on behalf of his client without the client's approval. See Fed. R. Civ. P. 41(a) (plaintiff may dismiss an action without a court order by filing a stipulation of dismissal signed by all parties who have appeared). The court, however, may in its discretion dismiss a case for a lack of prosecution to prevent undue delay in the disposition of other pending cases and to avoid congestion in the court's calendar. See Link v. Wabash Railroad Co., 370 U.S. 626, 629-30 (1962); see Fed. R. Civ. P. 41(b); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (district court may dismiss action for failure to comply with any order of the court).
Plaintiff is ORDERED TO SHOW CAUSE on or before May 10, 2016, why this action should not be dismissed for failure to prosecute. Plaintiff's counsel is ORDERED to serve a copy of this order on plaintiff at his last known address, and at the addresses of known family members, and file proof of such service on the docket of this case.
While the May 12, 2016 status (pretrial scheduling) conference date is maintained, the parties are relieved of the requirement of filing a joint status report.
IT IS SO ORDERED. DATED: May 3, 2016
/s/_________
UNITED STATES DISTRICT JUDGE