Filed: Aug. 15, 2017
Latest Update: Aug. 15, 2017
Summary: ORDER TO SHOW CAUSE FERNANDO M. OLGUIN , District Judge . Plaintiff filed his operative First Amended Complaint ("FAC") in state court on May 11, 2017, which added the Franchise Tax Board ("FTB") as a defendant. ( See Dkt. 1-1, FAC). Defendant United States of America removed that action on June 14, 2017. ( See Dkt. 1, Notice of Removal). By order dated August 1, 2017, plaintiff was ordered to show cause, on or before August 8, 2017, why the FTB should not be dismissed for lack of prosecu
Summary: ORDER TO SHOW CAUSE FERNANDO M. OLGUIN , District Judge . Plaintiff filed his operative First Amended Complaint ("FAC") in state court on May 11, 2017, which added the Franchise Tax Board ("FTB") as a defendant. ( See Dkt. 1-1, FAC). Defendant United States of America removed that action on June 14, 2017. ( See Dkt. 1, Notice of Removal). By order dated August 1, 2017, plaintiff was ordered to show cause, on or before August 8, 2017, why the FTB should not be dismissed for lack of prosecut..
More
ORDER TO SHOW CAUSE
FERNANDO M. OLGUIN, District Judge.
Plaintiff filed his operative First Amended Complaint ("FAC") in state court on May 11, 2017, which added the Franchise Tax Board ("FTB") as a defendant. (See Dkt. 1-1, FAC). Defendant United States of America removed that action on June 14, 2017. (See Dkt. 1, Notice of Removal). By order dated August 1, 2017, plaintiff was ordered to show cause, on or before August 8, 2017, why the FTB should not be dismissed for lack of prosecution for failure to complete service of the summons and complaint as required by Rule 4(m) of the Federal Rules of Civil Procedure.1 (See Dkt. 9, Court's Order of August 1, 2017). Plaintiff was advised that the court may dismiss the action prior to the 90 days required by Rule 4(m) if plaintiff has not diligently prosecuted the action. (See id.).
On August 4, 2017, plaintiff's counsel responded to the Order to Show Cause stating that he had spoken to the FTB's counsel and that it was his understanding that the FTB would be releasing its claims against plaintiff and would thus not be making an appearance in this action. (See Dkt. 13, Declaration of Daniel J. Hyun in Response to the Order to Show Cause Re: Dismissal Re: Lack of Prosecution at ¶¶ 4-5). Plaintiff requested an extension of time to file an entry of default against FTB to allow the parties to negotiate dismissal of the FTB. (See id. at ¶ 6).
Based on the foregoing, IT IS ORDERED THAT:
1. Plaintiff shall file a proof of service or application for entry of default against FTB no later than September 14, 2017.
2. Plaintiff is admonished that failure file a proof of service or application for entry of default against FTB by the September 14, 2017, deadline will result in the FTB being dismissed without prejudice for lack of prosecution and/or failure to comply with the orders of the court. See Fed. R. Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 1388 (1962.
3. The Order to Show Cause Re: Dismissal Re: Lack of Prosecution, is hereby continued pending compliance with paragraph one above.
