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David Myers v. Winn Law Group

March 28, 2013

DAVID MYERS, PLAINTIFF,
v.
WINN LAW GROUP, APC, ET AL., DEFENDANTS.



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

ORDER AND AMENDED FINDINGS AND RECOMMENDATIONS

Through proposed findings and recommendations (the "Proposed F&Rs") filed on March 8, 2013, the undersigned recommended that this case be dismissed with prejudice on grounds that plaintiff was previously granted leave to amend his complaint yet twice failed to do so.*fn1 (Proposed F&Rs, Dkt. No. 10)

On March 20, 2013, plaintiff timely filed written objections to the Proposed F&Rs. (Objections, Dkt. No. 11.) Within his objections, plaintiff makes representations regarding his various medical and financial difficulties, as well as regarding other difficulties relating to a paralegal he hired to help him with this case, all of which plaintiff states prevented him from timely complying with the court orders in this case. (Id.) In his objections, plaintiff requests that the Proposed F&Rs be amended in a single respect: to recommend the dismissal of his case without prejudice rather than with prejudice. (Objections at 2.)

The undersigned has considered the various representations within plaintiff's objections and, in an abundance of caution given plaintiff's pro se status, hereby withdraws his previously-filed Proposed F&Rs (Dkt. No. 10) and instead files these Amended Findings and Recommendations recommending that the action be dismissed without prejudice.

I. BACKGROUND

Plaintiff David Myers ("plaintiff") is proceeding without counsel and in forma pauperis in this action. (Dkt. No. 3.) On October 18, 2011, the undersigned screened plaintiff's original pleading and dismissed it with leave to amend. (Order, Oct. 18, 2011, Dkt. No. 3.) Plaintiff requested additional time to file his amended pleading (see Dkt. Nos. 4-6), and ultimately filed a First Amended Complaint on January 12, 2012. (First Am. Compl., Dkt. No. 7.)

On October 18, 2012, the undersigned screened plaintiff's First Amended Complaint as required by 28 U.S.C. § 1915(e)(2). (Order, Oct. 18, 2012, Dkt. No. 8.) The undersigned dismissed plaintiff's pleading without prejudice and granted plaintiff 30 days to file a second amended complaint. (Id.) In that order, the undersigned warned plaintiff that a "[f]ailure to timely file an amended complaint in accordance with this order will result in a recommendation that this action be dismissed." (Dkt. No. 8 at 9 (emphasis in original).)

When plaintiff failed to timely file a second amended complaint, the undersigned issued an Order to Show Cause ("OSC") on December 20, 2012, requiring plaintiff to explain the failure, allowing him an additional chance to file such a pleading, and warning him that failure to comply with the OSC would result in a recommendation that plaintiff's case be dismissed pursuant to Federal Rule of Civil Procedure 41(b). (OSC, Dkt. No. 9 at 2-3.) The OSC specifically warned plaintiff that "[p]laintiff's failure to file the required writing and the Second 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 with prejudice pursuant to Federal Rule of Civil Procedure 41(b) and Local Rules 110 and 183(a)." (Id. (emphasis in original).)

A review of the court's docket reveals that to date, plaintiff has not filed a second amended complaint and has not complied with the undersigned's order of October 18, 2012, or the Order to Show Cause issued on December 20, 2012.

The undersigned's prior orders (Dkt. Nos. 8, 9) 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. 8, 9) 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. 8, 9) 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. 8, 9 (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 a second 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 its deficiencies. (Orders, Dkt. Nos. 8, 9.) ...


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