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Betts v. CPS

United States District Court, E.D. California

February 12, 2014

ALMA BETTS, Plaintiff,
v.
CPS, et al., Defendants.

FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

Through these findings and recommendations, the undersigned recommends that plaintiff's case be dismissed with prejudice. Three times plaintiff failed to file an amended pleading despite receiving extra time to do so and despite having been warned of the consequences. For the reasons described below, the undersigned recommends that plaintiff's case be dismissed pursuant to Federal Rule of Civil Procedure 41(b).

I. BACKGROUND

Plaintiff Alma Betts ("plaintiff") is proceeding without counsel in this action.[1]

On August 9, 2013, the undersigned granted plaintiff's application to proceed in forma pauperis, dismissed his complaint without prejudice pursuant to 28 U.S.C. ยง 1915(e)(2)(B), and gave her leave to file an amended pleading within 45 days. (ECF No. 3.) The order concluded, "Failure to timely file an amended complaint in accordance with this order will result in a recommendation that this action be dismissed." (Id. at 11.)

Plaintiff failed to file an amended pleading by the 45-day deadline, and the court issued an Order to Show Cause ("OSC"). (OSC, ECF No. 4.) The OSC gave plaintiff an extended deadline of November 30, 2013, in which to file (1) an amended pleading and (2) a writing explaining why the case should not be dismissed given plaintiff's delay in meeting the court's deadline. (Id.) The undersigned warned plaintiff that her " failure to file the required writing and 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. at 3 (emphasis in original).)

On November 26, 2013, plaintiff filed a three-page handwritten document in what appeared to be an attempt to respond to the court's OSC. (ECF No. 5.) However, in an order issued on January 6, 2014, the court found that this letter did not satisfy the portion of the OSC requiring her to file an amended complaint by November 30, 2013. (ECF No. 6.) In addition, the court noted that plaintiff's letter indicated that she had never received the court's August 9, 2013 order. (Id. at 2.) Accordingly, the court extended the deadline by which plaintiff was to file an amended complaint to February 6, 2014. (Id. at 3-4.)

The deadline of February 6, 2014, has come and gone. Once again, plaintiff has not filed an amended pleading.

II. LEGAL STANDARD

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 v. Bonzelet , 963 F.2d 1258, 1260 (9th Cir. 1992). 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 v. Galaza , 291 F.3d 639, 642-43 (9th Cir. 2002); 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).

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, 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 ...

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