United States District Court, S.D. California
October 18, 2005.
DOROTHY M. NIEVES, Plaintiff,
DONALD H. RUMSFELD, Secretary, Department of Defense, et al., Defendants.
The opinion of the court was delivered by: NITA STORMES, Magistrate Judge
ORDER FOLLOWING SHOW CAUSE HEARING;
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE:
DISMISSAL OF CASE WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE
This is an employment discrimination action brought by Dorothy
M. Nieves ("Plaintiff"), who previously worked as a cashier at a
Defense Commissary, against her former employer. She is
proceeding pro se in this case. For the following reasons, the
Court RECOMMENDS that the case be DISMISSED WITHOUT PREJUDICE
for failure to prosecute.
By order filed August 16, 2005, the Court scheduled an Early
Neutral Evaluation Conference ("ENE") in this case for September
20, 2005. On that date, defense counsel appeared and was prepared
to proceed with the ENE; Plaintiff, however, failed to appear.
Defense counsel advised the Court that he had not spoken with
Plaintiff and did not know why she failed to appear for the ENE.
It was unknown whether Plaintiff had received the Notice setting
the ENE because it was returned in the mail marked
"Undeliverable" by the Post Office. Several other orders issued
in the case had also been returned by the Post Office as
"Undeliverable." All of these orders were sent to Plaintiff at
the following address: 3319 Needlegrass Court, San Diego,
California, 92115, which is the address she listed on her
complaint. Based on Plaintiff's failure to appear at the ENE, the Court
set a Show Cause Hearing for October 18, 2005 at 9:30 a.m. The
Notice stated, "Plaintiff Dorothy Nieves shall appear at the
hearing to show cause why sanctions should not be imposed against
her, up to and including monetary sanctions and/or termination
of the case." (emphasis added). This Notice was sent to
Plaintiff at 3319 Needlegrass Court, San Diego, California,
92115. On October 18, 2005 at approximately 9:40 a.m., the case
was called. Defense counsel appeared, but Plaintiff again failed
to appear. As of the date of this Report and Recommendation,
Plaintiff has not contacted the Court to offer any explanation
for her absence at the ENE or the Show Cause Hearing.
The district court has inherent power to manage its own docket
and in the exercise of that power may impose sanctions for
failure to comply with court orders; this includes, where
appropriate, dismissal of the case. Bautista v. Los Angeles
County, 216 F.3d 837, 841 (9th Cir. 2000). In deciding whether
to dismiss, the court should consider such factors as the public
interest in expeditious resolution of litigation; the court's
need to manage its docket; the risk of prejudice to the
defendant; the public policy favoring disposition of cases on
their merits; and the availability of less drastic alternatives.
Bautista, 216 F.3d at 841. Here, Plaintiff's failure to appear
at scheduled court dates has necessitated undue work for defense
counsel and the Court. The Court is aware that public policy
favors a disposition on the merits; however, Plaintiff has had no
contact with the Court since December 2004, when she filed her
Complaint and request to proceed in forma pauperis. This was
more than 10 months ago. Since that date she has failed to appear
at two scheduled court dates.*fn1 Her lack of participation
in this lawsuit gives the appearance that she is uninterested in
availing herself of a determination on the merits of the case.
Additionally, the Court specifically warned Plaintiff in the
Notice setting the Show Cause Hearing that it was considering
whether terminating sanctions were appropriate in this case.
The Court is cognizant of the fact that Plaintiff may not have
received certain orders issued in this case. However, Plaintiff
is obligated under the Local Rules to keep the Court and opposing
counsel advised of her current address. Local Rule 83.11(b). All
of the orders issued in this case have been sent to Plaintiff at
the address listed on her complaint. She has not advised the
Court of any change in her address. In circumstances such as these the Local Rules provide,
"If mail directed to a pro se plaintiff by the clerk at the
plaintiff's last designated address is returned by the Post
Office, and if such plaintiff fails to notify the court and
opposing parties within 60 days thereafter of the plaintiff's
current address, the court may dismiss the action without
prejudice for failure to prosecute." Local Rule 83.11(b). Here,
the docket indicates that mail directed to Plaintiff was first
returned by the Post Office on June 28, 2005. More than 90 days
have passed since that time, and Plaintiff has not notified the
Court or defense counsel of her current address.
Accordingly, due to Plaintiff's failure to appear at court
dates, notify the Court of her current address, and otherwise
prosecute this case, the undersigned RECOMMENDS that the case
be DISMISSED WITHOUT PREJUDICE for failure to prosecute. No
later than November 8, 2005, any party to this action may file
written objections with the Court and serve a copy on all
parties. The document should be captioned "Objections to Report
and Recommendation." Any reply to the objections shall be filed
with the Court and served on all parties no later than November
22, 2005. The parties are advised that failure to file
objections within the specified time may waive the right to raise
those objections on appeal of the Court's order. Martinez v.
Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.
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