IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 22, 2011
MOHINDER MIKE SANWAL AND KIRAN SANWAL, TRUSTEES OF THE MOHINDER & KIRAN SANWAL LIVING TRUST, PLAINTIFFS,
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).
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.
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
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
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 Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006).
Although involuntary dismissal can be a harsh remedy, the five relevant factors weigh in favor of dismissal of this action. The first two factors strongly support dismissal of this action. Plaintiffs' failures to file an opposition or statement of non-opposition to the motions to dismiss in the first instance, their admissions during the June 23, 2011 hearing that they did not intend to pursue this action if they could not find an attorney and that they have yet to find one, and their most recent failure to file a First Amended Complaint within the time limit described to them during the hearing and within the Orders themselves, all strongly suggest that plaintiffs have abandoned this action or are not interested in seriously prosecuting it. See, e.g., Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) ("The public's interest in expeditious resolution of litigation always favors dismissal."). Moreover, although plaintiffs were aware that the undersigned gave them a 45-day period in which to file a First Amended Complaint and that this potentially constituted their final opportunity to correct the multiple deficiencies in their pleading, plaintiffs took no action. Any further time spent by the court on this case, which plaintiffs have demonstrated a lack of any serious intention to pursue, will consume scarce judicial resources and take away from other active cases. See Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent power to manage their dockets without being subject to noncompliant litigants).
In addition, the third factor, which considers prejudice to a defendant as a result of a plaintiff's failure to timely oppose its motion to dismiss, should be given some weight. See Ferdik, 963 F.2d at 1262. A motion to dismiss is an aid to simplifying the issues and dismissing improper claims or parties before discovery ensues. First, plaintiffs failed to oppose the various motions to dismiss, and second, plaintiffs failed to file any amended pleadings or otherwise comply with the Orders. Plaintiffs' failures raise the real possibility that the defendants in this action may be forced to unnecessarily engage in further litigation against claims that plaintiffs do not appear to value enough to pursue in a serious manner. Indeed, the moving defendants have diligently pursued their motions to dismiss, and plaintiffs' failures to comply with the Orders and file an amended pleading have essentially stalled this matter and prevented the efficient resolution of this lawsuit. Moreover, unreasonable delay is presumed to be prejudicial. See, e.g., In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d at 1227.
The fifth factor, which considers the availability of less drastic measures, also supports dismissal of this action. As noted above, here the court has actually pursued remedies that are less drastic than a recommendation of dismissal. See Malone v. U.S. Postal Serv., 833 F.2d 128, 132 (9th Cir. 1987) ("[E]xplicit discussion of alternatives is unnecessary if the district court actually tries alternatives before employing the ultimate sanction of dismissal."). The court excused plaintiffs' initial failure to oppose the motions to dismiss and nonetheless permitted plaintiffs to be heard at the June 23, 2011 hearing, granted plaintiffs substantial additional time to file an amended pleading, and even informed plaintiffs that he would consider granting a further extension to file the amended pleading, if necessary, in the event plaintiffs were successful in their search for counsel and if their counsel needed time to adjust to the case. Moreover, the court advised plaintiffs of the requirement of opposing a motion to dismiss and informed them of the requirements of the Local Rules. Furthermore, the court advised plaintiffs that they were required to comply with the court's Local Rules and the Federal Rules of Civil Procedure even though they are proceeding without counsel. It also warned plaintiffs in straightforward terms that failure to comply with the court's Orders would result in a recommendation of dismissal. Warning a plaintiff that failure to take steps towards resolution of his or her action on the merits will result in dismissal satisfies the requirement that the court consider the alternatives. See, e.g., Ferdik, 963 F.2d at 1262 ("[O]ur decisions also suggest that a district court's warning to a party that his failure to obey the court's order will result in dismissal can satisfy the 'consideration of alternatives' requirement.") (citing Malone, 833 F.2d at 132-33). At this juncture, the court finds no suitable alternative to a recommendation for dismissal of this action.
The court also recognizes the importance of giving due weight to the fourth factor, which addresses the public policy favoring disposition of cases on the merits. However, for the reasons set forth above, factors one, two, three, and five strongly support a recommendation for dismissal of this action, and factor four does not materially counsel otherwise. Dismissal is proper "where at least four factors support dismissal or where at least three factors 'strongly' support dismissal." Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations and quotation marks omitted). Under the circumstances of this case, the other relevant factors outweigh the general public policy favoring disposition of actions on their merits. See Ferdik, 963 F.2d at 1263.
In light of the foregoing, IT IS RECOMMENDED that:
1. Plaintiffs' case be dismissed with prejudice as to all defendants pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
2. The Clerk of Court close this case and vacate all future dates in this case. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Id.; see also E.D. Local Rule 304(b). Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed with the court and served on all parties within fourteen days after service of the objections. E.D. Local Rule 304(d). Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).
IT IS SO RECOMMENDED.