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Mohinder Mike Sanwal and Kiran Sanwal, Trustees of the v. County of Sacramento; et al.

August 22, 2011

MOHINDER MIKE SANWAL AND KIRAN SANWAL, TRUSTEES OF THE MOHINDER & KIRAN SANWAL LIVING TRUST, PLAINTIFFS,
v.
COUNTY OF SACRAMENTO; ET AL. DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiffs Mohinder Mike Sanwal and Kiran Sanwal, Trustees of the Mohinder & Kiran Sanwal Living Trust (the "plaintiffs") filed their verified complaint on January 20, 2011. (Complaint ("Compl."), Dkt. No. 1.) Various defendants moved to dismiss the complaint (Dkt. Nos. 8, 9, 16, 18), but plaintiffs failed to file any written oppositions or statements of non-opposition to those motions.*fn1 The court held a hearing regarding those motions on June 23, 2011, and the plaintiffs appeared on their own behalf at the hearing.*fn2 (Dkt. No. 26.) For the reasons that follow, the undersigned recommends that plaintiff's action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b).

I. BACKGROUND

On the record during the June 23, 2011hearing, the undersigned explained various deficiencies in plaintiff's complaint. Plaintiffs represented that they would not amend their complaint or pursue this action if they could not find an attorney.

Also on the record during the hearing, the undersigned told plaintiffs that if they did not file a First Amended Complaint within 45 days of his forthcoming orders granting the motions to dismiss but permitting leave to amend, plaintiff's case "will be dismissed." The undersigned also explained to plaintiffs that their case would "go away" if, within 45 days of the court's forthcoming orders, plaintiffs had either failed to file a First Amended Complaint or failed to have an attorney appear on their behalf.

Following the hearing, the undersigned issued four separate orders (the "Orders") granting various defendants' motions to dismiss. (Orders, Dkt. Nos. 27, 28, 30, 31.) The Orders explained that, because plaintiffs are proceeding without counsel and entitled to leniency with respect to their pleadings, such dismissals would be without prejudice.*fn3 (Orders, Dkt. Nos. 27, 28, 30, 31.) The Orders gave plaintiffs "45 days" to file a First Amended Complaint and correct the deficiencies discussed during the hearing and further detailed within the orders. (Orders, Dkt. Nos. 27, 28, 30, 31.) The Orders also provided,

Plaintiffs are granted leave to file a First Amended Complaint within 45 days of the date of this order. This 45 day period shall give plaintiffs additional time to search for an attorney to represent them in this action. If plaintiffs are able to find an attorney to represent them in this action, the attorney shall file his or her appearance within 45 days of the date of this order, and may request additional time to prepare an amended pleading. If plaintiffs are unable to find an attorney within this period, and if plaintiffs wish to maintain this action and proceed without counsel, plaintiffs themselves remain obligated to file the First Amended Complaint within 45 days of the date of this order. A failure to do so may result in the dismissal of this action. (Orders, Dkt. Nos. 27, 28, 30, 31.) (footnote omitted).)*fn4

Thus, the court gave plaintiffs multiple warnings-both verbally and in writing- that their case could be dismissed for failure to prosecute, as well as their failure to comply with the Federal Rules of Civil Procedure, the court's orders, or the court's Local Rules.

It has been more than 45 days since the Orders were signed. (Orders, Dkt. Nos. 27 and 28 (dated June 24, 2011); 30 and 31 (dated June 27, 2011).) To date, however, plaintiffs have not filed a First Amended Complaint, no attorney has appeared on behalf of plaintiffs, and plaintiff s have not requested additional time to comply with the Orders. As described above, plaintiffs were warned several different times that a failure to file a First Amended Complaint by the 45-day deadline could result in the dismissal of their action.

II. DISCUSSION

Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, failure to comply with the court's local rules, or failure to comply with the court's orders.*fn5 See, e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court "may act sua sponte to dismiss a suit for failure to prosecute"); Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil procedure or the court's orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) ("Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court."); Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002) (affirming district court's dismissal of case for failure to prosecute when habeas petitioner failed to file a first amended petition). This court's Local Rules are in accord. See E.D. Local Rule 110 ("Failure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court."); E.D. Local Rule 183(a) (providing that a pro se party's failure to comply with the Federal Rules of Civil Procedure, the court's Local Rules, and other applicable law may support, among other things, dismissal of that party's action).

A court must weigh five factors in determining whether to dismiss a case for failure to prosecute, failure to comply with a court order, or failure to comply with a district court's local rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider:

(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; accord Pagtalunan, 291 F.3d at 642-43; Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). The Ninth Circuit Court of Appeals has stated that "[t]hese factors are not a series of conditions precedent before the judge can do anything, but a way for a district judge to think about what to do." In re ...


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