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Murphy v. U.S. Postal Service

UNITED STATES DISTRICT COURT Northern District of California


October 8, 2009

SHANNON O. MURPHY, PLAINTIFF(S),
v.
U.S. POSTAL SERVICE, DEFENDANT(S).

The opinion of the court was delivered by: Maria-Elena James Chief United States Magistrate Judge

ORDER FOR CLERK OF COURT TO REASSIGN CASE

REPORT & RECOMMENDATION

On July 9, 2009, Plaintiff Shannon Murphy filed the above-captioned complaint, as well as comply with this deadline, the Court again ordered Plaintiff to consent or decline, with a new an application to proceed in forma pauperis. On July 23, 2009, the Court ordered Plaintiff to either consent or decline magistrate jurisdiction by August 13, 2009. (Dkt. #4.) Because Plaintiff failed to deadline of September 3, 2009. (Dkt. #5.) Plaintiff failed to respond. Based on Plaintiff's inaction, the Court ordered Plaintiff to show cause why this case should not be dismissed for failure to prosecute and comply with court deadlines. The Court ordered Plaintiff to file a declaration by October 1, 2009, and scheduled an order to show cause hearing on October 8, 2009. (Dkt. #6.)

On October 8, 2009, the Court held an order to show cause hearing. Plaintiff made no appearance at the hearing and failed to file a declaration by the October 1 deadline. Based on this procedural history, the Court finds it appropriate to dismiss this case pursuant to Federal Rule of Civil Procedure 41(b). Under Rule 41(b), failure to comply with a court order can warrant dismissal. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). In "determining whether to dismiss a case for failure to comply with a court order, the district court must weigh five factors including '(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives.'" Id. at 1260-61 (quoting Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)). Here, Plaintiff failed to comply with Court orders and deadlines, failed to respond to the order to show cause, failed to make an appearance at the osc hearing, and has made no appearance in this matter since filing the complaint. Thus, the Court finds that the Ferdik factors weigh in favor of dismissal.

Accordingly, because Plaintiff has yet to consent to the undersigned's jurisdiction, the Court hereby

ORDERS the Clerk of Court to reassign this case to a district court judge. The undersigned RECOMMENDS that the newly-assigned judge dismiss this case for failure to prosecute and failure to comply with the Court's deadlines and orders. Pursuant to Federal Rule of Civil Procedure 72, any party may serve and file objections to this Report and Recommendation within 10 days after being served.

IT IS SO ORDERED AND RECOMMENDED.

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on October 8, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Shannon O. Murphy General Delivery Richmond, CA 94530 Shannon O. Murphy General Delivery Richmond, CA 94801

20091008

© 1992-2009 VersusLaw Inc.



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