Schaired v. Monterey Financial Services, Inc.
- Proceeding
- district
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
The court considered motions to withdraw filed by plaintiff's counsel and the plaintiff's failure to appear at a hearing regarding sanctions for missing a prior conference. The court granted the motions to withdraw and ordered the plaintiff to show cause why the action should not be dismissed for failure to prosecute.
| What the court decided | The model |
|---|---|
Granting Plaintiff's Counsel's Motions to Withdraw“Accordingly, the Court GRANTS their Motions. (ECF Nos. 27, 28.)” | agree with court The order recites that counsel attested to an inability to contact the plaintiff since February 2023 despite numerous attempts, satisfying the requirements of Local Civil Rule 83.3(f)(3). The court found good cause existed. This follows standard procedure for withdrawal of counsel in pro se or unresponsive client situations. |
Ordering Plaintiff to Show Cause Why Action Should Not Be Dismissed“Therefore, the Court again ORDERS Schaired to show cause why his case should not be dismissed pursuant to this Court’s inherent authority by no later than May 25, 2023.” | agree with court The court found that the plaintiff's failure to appear at the April 27, 2023 hearing, after being ordered to show cause for missing a prior conference, warranted dismissal under *Ferdik* and *Link*. However, the court exercised discretion to provide a final opportunity to respond before dismissing, citing an 'abundance of caution.' This is a permissible exercise of inherent authority and Rule 41(b) discretion to provide notice and an opportunity to be heard before dismissal for failure to prosecute. |
The order itself: sound — The order correctly identifies the legal basis for dismissal (failure to prosecute/comply with court orders) and cites appropriate binding authority (*Ferdik*, *Link*). The decision to grant withdrawal is supported by the recited facts regarding the client's unresponsiveness. The decision to order a final show cause hearing rather than immediate dismissal is a reasonable exercise of judicial discretion to ensure due process, particularly given the plaintiff's pro se status and the history of missed dates. The reasoning is complete and answers the motions presented.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT SCHAIRED, Case No. 22-cv-0736-BAS-MDD 12 Plaintiff, ORDER: 13 v. (1) GRANTING PLAINTIFF’S 14 MONTEREY FINANCIAL SERVICES, COUNSEL’S MOTIONS TO INC., 15 WITHDRAW (ECF Nos. 27, 28); Defendant. AND 16 17 (2) DIRECTING PLAINTIFF TO SHOW CAUSE WHY THIS 18 ACTION SHOULD NOT BE 19 DISMISSED 22 On April 4, 2023, United States Magistrate Judge Mitchell D. Dembin ordered 23 Schaired to show cause why he should not be sanctioned for his failure to appear at an 24 Early Neutral Evaluation and Case Management Conference scheduled that same day. 25 (First Order to Show Cause, ECF No. 26.) Judge Dembin directed Schaired to personally 26 appear at a hearing on April 27, 2023 or risk sanctions.1 (Id.) 27 1 Judge Dembin ordered Schaired’s counsel to mail the Order to Show Cause to Schaired at his 28 1 Just prior to the hearing, on April 12, 2023, Schaired’s counsel—Alexander J. 2 Taylor, Esq., and Nicholas M. Wajda, Esq.—moved to withdraw pursuant to Local Civil 3 Rule 83.3(f)(3). (ECF Nos. 27, 28.) They attest they have been unable to establish contact 4 with him since February 2023. They aver their numerous attempts to contact him at his 5 last known address and phone number have been met by Schaired with silence.2 (ECF 6 Nos. 27, 28.) 7 In accordance with his Order to Show Cause, Judge Dembin held a hearing on April 8 27, 2023. Taylor, Wajda, and Defendant’s counsel all appeared telephonically. However, 9 Schaired failed to appear, in person or otherwise. He did not file any document beforehand 10 seeking to hold in abeyance the hearing, nor did he file any written submission after the 11 hearing justifying his failure to appear. 12 This Court is satisfied good cause exists to support Schaired’s counsel’s requests to 13 be relieved of their representative duties in the instant case. See S.D. Cal. Civ.L.R. 14 83.3(f)(3). Accordingly, the Court GRANTS their Motions. (ECF Nos. 27, 28.) 15 The Court now turns to the appropriate sanction for Schaired’s failures to appear at 16 the April 27, 2023 hearing. A district court may dismiss a plaintiff’s action for his failure 17 to prosecute or failure to comply with a court order. See Ferdik v. Bonzelet, 963 F.2d 1258, 18 1260 (9th Cir. 1992) (holding that a district court may dismiss an action for failure to 19 comply with any order of the court); Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 20 (1962). Here, Schaired has failed to comply with Judge Dembin’s Order to Show Cause 21 by failing to appear at the April 27, 2023 hearing. This warrants dismissal of Schaired’s 22 Second Amended Complaint in and of itself. See Houston v. Cnty. of San Diego, Civ. No. 23 06cv1285 IEG (AJB), 2008 WL 10725618, at *1, 3 (S.D. Cal. Apr. 1, 2009). 24 However, out of an abundance of caution, this Court will give Schaired a final 25 opportunity to resuscitate his case. Therefore, the Court again ORDERS Schaired to show 26 cause why his case should not be dismissed pursuant to this Court’s inherent authority by 27 2 In compliance with Local Civil Rule 83.3(f)(3), Schaired’s counsel served their motion upon 28 1 ||no later than May 25, 2023. Schaired may show cause by filing either: (1) a Notice of 2 Intent indicating whether he (a) wishes to proceed with his Second Amended Complaint 3 || pro se, without the assistance of counsel, or (b) has obtained new counsel; or (2) request 4 ||an extension of time to file such a Notice of Intent. The Notice of Intent must contain an 5 ||explanation for Schaired’s failure to appear at the Order to Show Cause hearing on April 6 2023. 7 Schaired is warned that a failure to file an adequate response to this Order on 8 before May 25, 2023 will result in the Court dismissing this action. 9 The Clerk of Court is DIRECTED to send a copy of this Order to Schaired’s last 10 || known address at 25 Southern Oaks Dr., Fort Stewart, Georgia 31315. 11 IT IS SO ORDERED. / . , 12 || DATED: May 5, 2023 (Yin A (Lyohaa é 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28