The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Through these findings and recommendations, the undersigned recommends that plaintiff's case be dismissed with prejudice and that this case be closed.*fn1 Plaintiff has twice failed to appear for scheduled status conferences and has refused to cooperate in scheduling a Voluntary Dispute Resolution Program ("VDRP") session despite having consented to referral.
Plaintiff proceeds without counsel and in forma pauperis in this matter. Dkt. 8.
The original complaint was filed on July 18, 2011 and the operative second amended complaint asserts claims under the Americans with Disabilities Act ("ADA") and the Rehabilitation Act against several governmental entity defendants. Dkt. 1, 26.
On October 24, 2011 the undersigned entered an order setting a status conference for March 21, 2012 and requiring each party to file status reports no later than 14 days prior to the hearing. Dkt. 9. Defendants timely filed their status report on March 7, 2012 (Dkt. 21), but when plaintiff failed to do so the undersigned granted a five day extension in which plaintiff could file her report or a statement consenting to referral to the court's Voluntary Dispute Resolution Program ("VDRP") (Dkt. 22). Plaintiff filed a statement consenting to referral to VDRP on March 15, 2012 and, because both parties had requested referral, the undersigned entered an order on March 19, 2012 referring the matter accordingly. Dkt. 15, 23, 24.
On July 27, 2012, defendants notified the court that several attempts to schedule the VDRP session with plaintiff had been unsuccessful. Dkt. 30. According to defendants, both the VDRP coordinator and counsel for defendants had attempted scheduling a date, but plaintiff had not returned defendants' most recent phone call. Id. In response, the undersigned issued an order to show cause ("OSC") on July 31, 2012, which required plaintiff to: (1) file a declaration within fourteen days of the order showing cause why monetary sanctions should not be imposed against her for failing to cooperate in good faith with the scheduling of the VDRP session; (2) personally appear at a status conference set for August 29, 2012; and (3) file a joint status report with the defendants no later than August 22, 2012 . Dkt. 31. The undersigned also cautioned plaintiff that "failure to cooperate with the drafting of the joint status report and/or failure to appear at the status conference will result in a recommendation that the action be dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute the case and failure to obey court orders and the Local Rules." Id. Plaintiff was further warned that failing to comply with the Local Rules "may be grounds for imposition ....of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." Id.
On August 13, 2012 plaintiff filed a declaration objecting generally to the court's OSC and to defendants' characterization of its attempts to schedule the VDRP session with plaintiff. Dkt. 33. She also referenced a deposition scheduled by defendants on July 30, 2012 that she refused to attend due to "discovery issues that need to be settled by the judge first." Id. In their status report filed on August 21, 2012, defendants indicated that they circulated a draft joint report to plaintiff on August 8, 2012 for her to review and edit, but she failed to respond. Dkt. 34.
On August 28, 2012 -- the day before the status conference -- plaintiff left a message with the court stating, without explanation, that she would not be able to attend. Dkt. 36. The court subsequently vacated the August 29, 2012 status conference and re-set it for September 19, 2012. Dkt. 36. Plaintiff was again instructed to personally appear at the status conference and informed that the court was not inclined to further extend the date absent extraordinary circumstances. Id. Additionally, plaintiff was cautioned that failure to appear at the status conference would result in a recommendation that the action be dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b). Id. Nonetheless, plaintiff again failed to appear for the September 19, 2012 status conference as instructed. Dkt. 38. She did not notify the court of her absence prior to the hearing nor did she subsequently explain her failure to attend.
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.*fn2 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. Cal. L.R. 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. Cal. L.R. 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).
The 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 holds 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 ...