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United States District Court, S.D. California

October 18, 2005.

DONALD H. RUMSFELD, Secretary, Department of Defense, et al., Defendants.

The opinion of the court was delivered by: NITA STORMES, Magistrate Judge


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).



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