Raygoza v. MTS Code Compliance Seargent J. Kresic
- Proceeding
- district
- Area
- civil
- Panel
- Larry Alan Burns (author)
Analysis
The court considered a motion to show cause why the action should not be dismissed for failure to serve and failure to prosecute after the plaintiff filed no responsive papers. The court ordered the case dismissed without prejudice.
| What the court decided | The model |
|---|---|
Dismissal of the action without prejudice for failure to serve and failure to prosecute“This action is therefore DISMISSED WITHOUT PREJUDICE for failure to serve and failure to prosecute.” | agree with court The court applied Federal Rules of Civil Procedure 4(m) and 41(b) to dismiss the case. The record indicates the plaintiff failed to serve the defendant and failed to respond to a show cause order despite having the capability to file electronically. Dismissal without prejudice is the standard remedy for failure to serve under Rule 4(m) and is appropriate for failure to prosecute under Rule 41(b) when the plaintiff has been given notice and an opportunity to respond. |
The order itself: sound — The order is procedurally sound. It cites the correct federal rules (4(m) and 41(b)) and a binding Ninth Circuit precedent (Hells Canyon) supporting the court's authority to dismiss sua sponte. The court provided notice and an opportunity to be heard (show cause order) before dismissing, satisfying due process requirements for dismissal under Rule 41(b). The dismissal is without prejudice, which is the correct remedy for failure to serve under Rule 4(m).
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JORGE GUADALUPE RAYGOZA Case No.: 19cv2430-LAB (AHG)
12 Plaintiff, ORDER OF DISMISSAL 13 v. 14 MTS CODE COMPLIANCE SERGEANT J. KRESIC 15 Defendant. 16 17 18 Plaintiff Jorge Raygoza, who is represented by counsel, filed his complaint 19 on December 19, 2019, and a summons was issued. Since then, he has not filed 20 anything, and Defendant has not appeared. 21 The Court ordered him to show cause by May 20, 2020 why this action 22 should not be dismissed both for failure to serve and failure to prosecute. See Fed. 23 R. Civ. P. 4(m) and 41(b); and Civil Local Rule 41.1(a). See also Hells Canyon 24 Preservation Council v. U.S. Forestry Serv., 403 F.3d 683, 689 (9th Cir. 2005) 25 (holding that district court may dismiss under Rule 41(b) sua sponte). The Court, 26 noting that Raygoza’s counsel was capable of filing electronically, required him to 27 file his response even if the Clerk’s office was physically inaccessible. The Court 28 also cautioned him that if he failed to show cause, this action would be dismissed. 1 Since then, Raygoza has filed nothing. This action is therefore DISMISSED 2 || WITHOUT PREJUDICE for failure to serve and failure to prosecute. 3 4 IT IS SO ORDERED. 5 || Dated: May 26, 2020 6 [ WM f 4. Ga 7 Honorable Larry Alan Burns 8 Chief United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28