Opinion
3:20-cv-00170-AC
01-13-2022
SCI COLLABORATION, LLC, NIKKI BUZZETTA, and KEN LUNA, Plaintiffs, v. SPORTS CAR INTERNATIONAL, LLC, JOHN MICHIAL SHUMATE, Defendants.
FINDINGS AND RECOMMENDATION
ACOSTA, Magistrate Judge.
Plaintiffs SCI Collaboration, LLC ("SCIC"), Nikki Buzzetta ("Buzzetta"), and Ken Luna ("Luna") (collectively "Plaintiffs") filed this action against Defendants Sports Car International, LLC ("SC International") and John Michial Shumate ("Shumate") on January 30, 2020 (Compl. ECF No. 1). At the time, Plaintiffs were represented by counsel. In their Complaint, Plaintiffs alleged a single claim of breach of contract against S.C. International and Shumate under a Release Agreement. In a November 5, 2020 Order, the court granted Shumate's motion to dismiss, concluding that Plaintiffs failed to state a claim against Shumate personally under the Release Agreement, and gave Plaintiffs leave to file an Amended Complaint. (Op. & Order, ECF No. 27.) Plaintiffs filed an Amended Complaint on November 30, 2020. (Am. Compl., ECF No. 31.) On January 6, 2021, Plaintiffs' counsel moved to withdraw. (Mot. Withdraw, ECF No. 35.) Following a telephone status hearing, the court granted the motion to withdraw and advised Plaintiffs that because SCIC is a legal entity, it must be represented by counsel. (Order, ECF No. 39.)
At January 22, 2021 status conference, Luna appeared pro se and advised the court that Plaintiffs were attempting to retain counsel to represent SCIC. (Minutes of Proceedings, ECF No. 42.) The court extended case management deadlines to permit Plaintiffs to secure counsel. (Id.) At a May 27, 2021 status conference, Luna and Buzzetta appeared pro se and advised the court that Texas counsel had been retained to represent SCIC, and that they were attempting to secure local counsel. (Minutes of Proceedings, ECF No. 47.) The court again extended various case management deadlines. (Id.) On October 29, 2021, the dispositive motion deadline lapsed with no motion filed, no appearance by local counsel, and no appearance or application for pro hac vice admission filed by Texas counsel.
At a December 20, 2021 status conference, Plaintiffs failed to appear. Defendants' counsel, Anna Sortun, stated that she had spoken on several occasions with Plaintiffs' Texas counsel, and confirmed that Plaintiffs' Texas counsel knew of the scheduled status conference. (Minutes of Proceedings, ECF No. 50.) Review of the court's docket reveals that Buzzetta and Luna received electronic notice of the status conference, yet failed to appear. (Id.)
Immediately following the status conference, the court issued an Order requiring Plaintiffs to show cause in writing by January 10, 2022, why their respective claims and this case should not be dismissed for lack of prosecution pursuant to Federal Rule of Civil Procedure 41(b). (Id.) Again, review of the docket indicates that Plaintiffs received electronic notice of the court's Order requiring them to show cause in writing. (Id.) To date, Plaintiffs have not responded to the court's Order. Therefore, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 41-2(a), the court concludes Plaintiff has failed to comply with the Court's order and has failed to diligently prosecute this action. Accordingly, the court recommends that this action be DISMISSED without prejudice.
Scheduling Order
The Findings and Recommendation will be referred to District Judge Michael H. Simon. Objections, if any, are due within 14 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.