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Pat Patterson v. Old Republic Title Company

December 27, 2012

PAT PATTERSON, PLAINTIFF,
v.
OLD REPUBLIC TITLE COMPANY, ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS

Through these proposed findings and recommendations, the undersigned recommends that plaintiff's case be dismissed without prejudice and that this case be closed.*fn1

Although plaintiff was previously granted leave to amend his complaint, plaintiff twice failed to do so.

I. BACKGROUND

Plaintiff is proceeding without counsel and in forma pauperis. (Dkt. No. 5.) On June 26, 2012, the undersigned screened plaintiff's complaint as required by 28 U.S.C. § 1915(e)(2). (Order, June 26, 2012, Dkt. No. 5.) The undersigned dismissed the complaint with leave to amend and granted plaintiff 30 days to file a first amended complaint. (Id.) The court warned plaintiff that "[f]ailure to timely file an amended complaint in accordance with this order will result in a recommendation that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b) and Local Rules 110 and 183(a)." (Id. at 5.)

Plaintiff failed to timely file an amended complaint, and on August 3, 2012, the undersigned issued an order requiring plaintiff to show cause why the action should not be dismissed and gave plaintiff additional time to file an amended pleading. (Order to Show Cause ("OSC"), Dkt. No. 6.)

Plaintiff timely responded to the OSC with a letter dated August 17, 2012 ("Letter"). (Letter, Dkt. No. 7.) The Letter described plaintiff's desire to continue pursuing this action and detailed both plaintiff's financial difficulties and trouble finding attorney representation. (Id.) However, plaintiff did not file any amended pleading. Accordingly, the OSC was discharged, and the undersigned gave plaintiff yet another opportunity to file an amended pleading. (Order, Oct. 23, 2012, Dkt. No. 8.)

In his prior orders, the undersigned informed plaintiff that despite plaintiff's financial difficulties, the undersigned is bound by the Federal Rules of Civil Procedure, legal precedent, and other authorities specifically described in the undersigned's order issued June 26, 2012. (Id.) The undersigned gave plaintiff a "final opportunity to file an amended pleading in compliance with the order issued June 26, 2012," and specifically informed plaintiff that a "failure to file an amended pleading . . . will result in a recommendation that this action be dismissed." (Id. at 2-3.) The undersigned also informed plaintiff that "[p]laintiff's failure to file the first amended complaint shall constitute an additional ground for, and plaintiff's consent to, the imposition of appropriate sanctions, including a recommendation that plaintiff's case be involuntarily dismissed . . . pursuant to Federal Rule of Civil Procedure 41(b) and Local Rules 110 and 183(a)." (Id.)

The undersigned's prior orders (Dkt. Nos. 6, 8) each separately informed plaintiff that Eastern District Local Rule 110 provides that "[f]ailure 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." Moreover, the undersigned's prior orders (Dkt. Nos. 6, 8) also informed plaintiff that Eastern District Local Rule 183(a) provides, in part:

Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. All obligations placed on "counsel" by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal . . . or any other sanction appropriate under these Rules.

See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) ("Pro se litigants must follow the same rules of procedure that govern other litigants."). The undersigned's prior orders (Dkt. Nos. 6, 8) also informed plaintiff that a district court may impose sanctions, including involuntary dismissal of a plaintiff's case pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or fails to comply with the court's orders. (See Dkt. Nos. 6, 8 (citing 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) (stating 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."), cert. denied, 506 U.S. 915 (1992); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam) (stating that district courts have inherent power to control their dockets and may impose sanctions including dismissal), cert. denied, 479 U.S. 829 (1986)).)

To date, plaintiff has had ample time to file an amended pleading and has not done so, despite having been warned of the consequences. Moreover, given plaintiff's pro se status, the undersigned gave plaintiff additional opportunities to amend his pleading to correct the deficiencies. (Orders, Dkt. Nos. 5, 6, 8.) Notwithstanding those opportunities, plaintiff has not filed any amended pleading to date.

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.*fn2 See, e.g., Chambers, 501 U.S. at 44 (recognizing that a court "may act sua sponte to dismiss a suit for failure to prosecute"); Hells Canyon Preservation Council, 403 F.3d at 689 (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, 963 F.2d at 1260 ("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), cert. denied, 538 U.S. 909 (2003). This court's Local Rules are in accord. See E. Dist. 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 ...

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