Opinion
1:06-cv-01728-AWI-SMS.
August 8, 2007
ORDER TO SHOW CAUSE RE: DISMISSAL FOR LACK OF PROSECUTION ORDER DIRECTING CLERK TO SPECIALLY SERVE PLAINTIFF
This matter initially came on for a Mandatory Scheduling Conference on January 23, 2007, pursuant to the court's standard Order Setting Mandatory Scheduling Conference (Doc. 2-1). The Scheduling Conference was continued to June 5, 2007 due to a pending motion to dismiss before Judge Ishii (Doc. 9). The Scheduling Conference was again continued to August 7, 2007 for Diane M. Acciavatti, Esq., counsel identified for plaintiff in New Jersey, to either withdraw as attorney of record for plaintiff via noticed motion unless plaintiff concurred; OR, if plaintiff did not wish to pursue this action in California, file a dismissal with prejudice by June 18, 2007 (Doc. 19). On June 19, 2007, Diane M. Acciavatti, Esq., filed a motion to withdraw as counsel for plaintiff (Doc. 20). On June 21, 2007, Judge Ishii granted the motion to withdraw. Therefore, the Scheduling Conference came on regularly on August 7, 2007 at 10:00 a.m. before Judge Snyder. Pro Se Plaintiff Amit Mahajan did not appear or otherwise contact the court. Elizabeth A. Vogel, Esq., of the Law Offices of Herman Franck, appeared telephonically on behalf of defendants.
A review of the instant action shows that plaintiff has not diligently prosecuted this case. The court possesses the discretionary authority to dismiss an action based on plaintiff's failure to prosecute diligently. Fed.R.Civ.P. 41(b); Schwarzer, Tashima Wagstaffe, Fed. Civ. Proc. Before Trial ¶ 16:431 (1997). Unreasonable delay by plaintiff is sufficient to justify dismissal, even in the absence of actual prejudice to the defendant (Moore v. Telfon Communications Corp., 589 F.2d 959, 967-68 (9th Cir. 1978)) since a presumption of injury arises from the occurrence of unreasonable delay. Fidelity Philadelphia Trust Co. v. Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978). Plaintiff then has the burden of showing justification for the delay and, in the absence of such showing, the case is properly dismissed for failure to prosecute. Nealey v. Transportation Maritima Mexicana, S.A., 662 F.2d 1275 (9th Cir. 1980).
IT IS HEREBY ORDERED that:
1. This matter be set for hearing on September 14, 2007 at 9:30 a.m. in Courtroom No. 7 on the Sixth Floor before the Honorable Sandra M. Snyder, United States Magistrate Judge, for consideration of dismissal for lack of prosecution.
2. If plaintiff has any reasons why this action should not be dismissed, he shall submit them by sworn declaration of facts on or before August 31, 2007, to which he may append a supporting memorandum of law, including (A) an explanation of the lack of activity in this case, and (B) shall list each specific step he plans to take to prepare this case for trial.
3. Defendants may file a declaration or memorandum stating their position, but are not required to do so, on or before September 7, 2007.
4. The Clerk's Office specially serve plaintiff as follows: c/o th
Amit Mahajan Michael P. Kushner, Esq. 350 Fifth Avenue, 68 Floor, Suite 6110 New York, NY 10118 IT IS SO ORDERED.