Opinion
No. C-13-2883 EMC
2013-10-18
JONATHAN JIMENEZ, Plaintiff, v. UNITED STATES POSTAL SERVICE, et al., Defendants.
ORDER DISCHARGING THE ORDER TO SHOW CAUSE
On October 7, 2013, this Court dismissed the instant action for failure to comply with the exhaustion requirements contained in the Federal Tort Claims Act. (Dkt. No. 19). In this order, the Court expressed concern with the performance of Plaintiff's counsel, Mr. James A. Zito. (Id. at 6-8). Accordingly, this Court ordered Mr. Zito to serve a copy of the Court's order on his client and to show cause why he should not be referred to the Standing Committee on Professional Conduct pursuant to Civ. L.R. 11-6(a)(1).
The Court finds Mr. Zito's explanation for the delay in filing his client's SF-95 - that he asked his assistant to do it and thought it was being done - exceedingly weak. See Hu v. Fang, 104 Cal. App. 4th 61, 64 (2002) ("[E]ven though an attorney cannot be held responsible for every detail of office procedure, he must accept responsibility to supervise the work of his staff." (citation omitted)). However, Mr. Zito has accepted responsibility. He has further represented that he has implemented a new system to ensure that "all pertinent dates are calendared and claims filed and/or timely served." (Dkt. No. 21, at 4). In light of these representations, as well as the Court's expectation that Mr. Zito will be more diligent in the future, the Court will DISCHARGE the order to show cause and will not refer Mr. Zito to the Standing Committee.
Nothing in this order shall be construed as a finding by this Court that Mr. Zito's provided competent representation in this action. Cf. Coscia v. McKenna & Cuneo, 25 Cal. 4th 1194, 1199 (2001) (recognizing the "duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise").
IT IS SO ORDERED.
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EDWARD M. CHEN
United States District Judge