United States District Court, E.D. California
ORDER VACATING TRIAL DATE, DISMISSING ACTION WITH PREJUDICE, DENYING MOTION TO DISMISS AS MOOT, AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT
SHEILA K. OBERTO, Magistrate Judge.
Plaintiff Ahkeem Williams ("Plaintiff"), a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 17, 2012. This action is proceeding against Kings County Sheriff's Deputies Garcia, Valdez, Cortez, Silva, Castro, Day, Stepp, Collier, Torres, Delia, Jr., and Tordsen ("Defendants") for use of excessive physical force, in violation of the United States Constitution. This case is set for a telephonic trial confirmation hearing on November 5, 2014, and jury trial on December 2, 2014. Based on Plaintiff's failure to comply with the Court's second order to file a pretrial statement, this action shall be dismissed, with prejudice, for the reasons set forth below.
A. Failure to Comply with Scheduling Order
The pretrial dispositive motion deadline was January 21, 2014. (Doc. 18.) Neither Plaintiff nor Defendants filed a dispositive motion, and on June 19, 2014, the Court issued a scheduling order setting this case for jury trial and requiring Plaintiff to file his pretrial statement on or before September 8, 2014. (Doc. 101.) In recognition of Plaintiff's pro se status, the Court provided Plaintiff with a copy of Local Rule 281, which governs pretrial statements, and it provided Plaintiff with a generous compliance period of almost three months. ( Id. ) The Court also warned the parties that the failure to comply with the order may result in sanctions, including dismissal of the action or entry of default. ( Id. )
Plaintiff failed to file his pretrial statement or otherwise respond to the order, and on September 12, 2014, the Court ordered Plaintiff to show cause why this action should not be dismissed. (Doc. 102.) Plaintiff was warned that the failure to respond to the order would result in dismissal of this action, with prejudice. ( Id. ) Plaintiff filed a timely response on September 22, 2014, but he failed to sign it. (Doc. 103.) The Court struck the unsigned response and gave Plaintiff an extension of time to submit a signed response. Fed.R.Civ.P. 11(a); Local Rule 131. (Doc. 106.) Plaintiff then filed a signed response, and given that Plaintiff did respond and in light of his pro se status, the Court discharged the order to show cause and gave Plaintiff another opportunity to file his pretrial statement. (Doc. 109.) Plaintiff was ordered to file his pretrial statement on or before October 10, 2014, and he was again warned that the failure to comply with the order may result in the imposition of sanctions deemed appropriate by the Court, including dismissal of the action with prejudice. ( Id. ) Plaintiff has not complied with the order.
The failure to obey a scheduling order is grounds for the imposition of sanctions. Fed.R.Civ.P. 16(f)(1)(C). A scheduling order is not a frivolous piece of paper, idly entered. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) (quotation marks and citation omitted); see also Sinclair v. Fox Hollow of Turlock Owners Ass'n, No. 1:03-cv-05439-AWI-SAB, 2014 WL 4275470, at *5 (E.D.Cal. Aug 29, 2014) ("[S]cheduling orders are not mere suggestions to be set aside or disregarded at the party's whim."), findings and recommendations adopted in full, 2014 WL 4275470 (E.D.Cal. Sep. 26, 2014); Tessera, Inc. v. Sony Corp., No. 5:11-cv-04399 EJD, 2013 WL 97794, at *3 (N.D.Cal. Jan. 7, 2013) ("A scheduling order is not a mere suggestion or a trifle that can be disregarded when it becomes inconvenient; it is an order from the court, " and "[j]ust like any other order, the court expects compliance."). Parties are required to exercise due diligence, Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing Johnson, 975 F.2d at 609), and the Court finds that Plaintiff's repeated failure to file a pretrial statement despite being warned three times of the consequences warrants the imposition of sanctions.
B. Propriety of Terminating Sanctions
1. Balancing Test
The Court has the inherent power to control its docket and may, in the exercise of that power, impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action for failure to comply with a pretrial order, the Court must weigh: (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 sanctions. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (quotation marks and citation omitted). These factors guide a court in deciding what to do and are not conditions that must be met for a court to take action. In re PPA, 460 F.3d at 1226 (citation omitted).
2. Application of Factors
a. Public's Interest
"The public's interest in expeditious resolution of litigation always favors dismissal, '" Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2006) (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), as the "orderly and expeditious resolution of disputes is of great importance to the rule of law, " In re PPA, 460 F.3d at 1227. This case has been pending since 2012, jury trial is set in fewer than seven weeks, and Plaintiff's refusal to comply with the order to file a pretrial statement threatens to delay the ...