United States District Court, Central District of California, Eastern Division
November 4, 2014
MICHAEL A. BERINGER, Plaintiff,
COUNTY OF SAN BERNARDINO, SHERIFFS, et al., Defendants
Michael Robert Beringer, Plaintiff, Pro se, Rancho Cucamonga, CA.
For County of San Bernardino Sheriffs, Sheriff Dept, MR Jeff Rose, Jail Capt, in individual capacity, Jeff Rose, Jail Capt, in official capacity, Defendants: Algeria R Ford, LEAD ATTORNEY, San Bernardino County Counsel, San Bernardino, CA.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
ANDREW J. WISTRICH, United States Magistrate Judge.
Plaintiff, who is incarcerated and is proceeding pro se, filed a civil rights complaint against the " County of San Bernardino Sheriffs" (the " County") and two San Bernardino County Sheriff's Department officers, Jeff Rose (" Rose") and Mr. Coorba (" Coorba").
On August 29, 2014, the County and Rose filed and served a motion to dismiss the complaint with prejudice for failure to state a claim upon which relief can be granted. A scheduling order was issued setting a deadline of September 24, 2014 for plaintiff to file an opposition to the motion. The order included the following warning:
The Court may decline to consider any memorandum or other paper not filed within the deadline set by order or local rule. The failure to file any required paper, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion. C.D. Cal. Local R. 7-12.
[Docket no. 12 (emphasis in original)]. Plaintiff did not file opposition to the motion or a request for extension of time by the filing deadline of September 24, 2014.
On September 17, 2014, the United States Marshal Service (" USMS") filed Process Receipt and Return (USM-285) forms stating that the County and Rose had been served with the summons and complaint, but that service had not been executed on Coorba for the following reason: " The employer does not have the above individual on their records of employment. Not able to serve nor locate." [Docket no. 15].
Plaintiff's failure to file timely opposition to defendants' motion to dismiss and his failure to provide the USMS with adequate information to locate and serve Coorba with the summons and complaint warrant dismissal of this action.
It is well-established that a district court may dismiss an action for failure to prosecute, failure to follow court orders, or failure to comply with the federal or local rules. See Fed.R.Civ.P. 41(b); C. D. Cal. Local R. 7-12, 41-1; Link v. Wabash R. Co., 370 U.S. 626, 629-630, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.) (per curiam), cert. denied, 516 U.S. 838, 116 S.Ct. 119, 133 L.Ed.2d 69 (1995); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert. denied, 506 U.S. 915, 113 S.Ct. 321, 121 L.Ed.2d 242 (1992); Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (per curiam). 626, 629-630 (1962). " The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendar of the District Courts."
Link, 370 U.S. at 629-630.
Under Local Rule 7-12, " [t]he failure to file any required paper, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion . . . ." The Ninth Circuit has upheld the dismissal of an action for failure to file opposition to a motion to dismiss pursuant to a similar local rule.
See Ghazali, 46 F.3d at 53 (holding that where the plaintiff failed to file an opposition to a motion to dismiss, the district court did not abuse its discretion in dismissing the action pursuant a local rule stating that a party's failure to file an opposition to a motion " shall constitute a consent to the granting of the motion"). Plaintiff's pro se status does not excuse him from compliance with the federal or local rules. See generally Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir. 2007) (" [A] pro se litigant must 'abide by the rules of the court in which he litigates.'") (quoting Carter v. Comm'r, 784 F.2d 1006, 1008 (9th Cir. 1986)); C.D. Cal. Local R. 83-2.10.3 (" Compliance With Federal Rules. Any person appearing pro se will be required to comply with these Local Rules, and with the F.R.Civ.P., F.R.Crim.P., F.R.Evid. and F.R.App.P.").
In determining whether to dismiss a case for failure to prosecute, failure to comply with court orders, or failure to comply with a local rule, a district court should consider the following five factors: " (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) Prod. Liability Litig., 460 F.3d 1217, 1226-1228, 1234-1252 (9th Cir. 2006) (discussing and applying those factors); Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (same), cert. denied, 538 U.S. 909, 123 S.Ct. 1481, 155 L.Ed.2d 230 (2003); see, e.g., Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004) (failure to comply with discovery orders); Southwest Marine Inc. v. Danzig, 217 F.3d 1128, 1138 (9th Cir. 2000) (failure to prosecute), cert. denied, 532 U.S. 1007, 121 S.Ct. 1733, 149 L.Ed.2d 658 (2001);
Ghazali, 46 F.3d at 53 (failure to follow local rule). Regardless of whether a litigant's conduct is most properly characterized as failure to prosecute or to comply with a court order or rule, the applicable standard is the same.
The first factor--the public's interest in the expeditious resolution of litigation--" always favors dismissal."
Pagtalunan, 291 F.3d at 642 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). " Orderly and expeditious resolution of disputes is of great importance to the rule of law. By the same token, delay in reaching the merits, whether by way of settlement or adjudication, is costly in money, memory, manageability, and confidence in the process."
In re PPA Prod. Liab. Litig., 460 F.3d at 1227. " [D]ismissal serves the public interest in expeditious resolution of litigation as well as the court's need to manage the docket when a plaintiff's noncompliance has caused the action to come to a halt, thereby allowing the plaintiff, rather than the court, to control the pace of the docket." In re PPA Prod. Liab. Litig., 460 F.3d at 1234.
The second factor--the court's need to manage its docket--also favors dismissal.
See Pagtalunan, 291 F.3d at 642 (holding that this factor weighed in favor of dismissal where the plaintiffs' habeas petition " consumed some of the court's time that could have been devoted to other cases on the docket"); Ferdik, 963 F.2d at 1261 (noting the importance of " preserv[ing] the district courts' power to manage their dockets without being subject to the endless vexatious noncompliance of litigants").
The third factor--prejudice to the defendants or respondents--supports dismissal. A rebuttable presumption of prejudice to the defendant arises when a plaintiff unreasonably delays prosecution of an action. In re Eisen, 31 F.3d 1447, 1452-1453 (9th Cir. 1994) (citing Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976)); see Henderson v. Duncan, 779 F.2d 14211425 (9th Cir. 1986) (" [A]lthough no specific showing of prejudice to defendants is made, the integrity of the district court is involved. In this case, the district court did warn explicitly of the consequences of counsel's dilatory behavior . . . .").
The fourth factor--the availability of less drastic sanctions--also supports dismissal. Plaintiff was explicitly warned about the consequences of failing to timely file opposition to defendant's motion.
See In re PPA Prod. Liability Litig., 460 F.3d at 1229 (" Warning that failure to obey a court order will result in dismissal can itself meet the 'consideration of alternatives' requirement.");
Computer Task Group, Inc., 364 F.3d at 1116-1117 (noting that the disobedient party " had sufficient notice that continued refusal to cooperate would lead to terminating sanctions"); Anderson, 542 F.2d at 525 (" There is no requirement that every single alternative remedy be examined by the court before the sanction of dismissal is appropriate. The reasonable exploration of possible and meaningful alternatives is all that is required.").
The fifth factor--the public policy favoring disposition of cases on their merits--weighs against dismissal, as it always does.
Pagtalunan, 291 F.3d at 643 (citing Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). Despite the policy favoring disposition on the merits, however, it remains a litigant's responsibility to comply with orders issued by the court and " to move towards that disposition at a reasonable pace, and to refrain from dilatory and evasive tactics." In re Eisen, 31 F.3d at 1454 (quoting Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991)). Plaintiff has not fulfilled that obligation.
The five-factor test for dismissal under Rule 41(b) is a disjunctive balancing test, so not all five factors must support dismissal. See Valley Eng'rs Inc. v. Elec. Eng'g Co., 158 F.3d 1051, 1057 (9th Cir. 1998) (noting that the five-factor test " amounts to a way for a district judge to think about what to do, not a series of conditions precedent" to dismissal), cert. denied, 526 U.S. 1064, 119 S.Ct. 1455, 143 L.Ed.2d 542 (1999);
Hernandez, 138 F.3d at 399 (explaining that dismissal is appropriate when four factors support dismissal or where three factors " strongly" support dismissal). Four of the five factors support dismissal. Therefore, this action should be dismissed pursuant to Rule 41(b) as to the County and Rose.
A court has discretion to dismiss an action under Rule 41(b) with or without prejudice. See Fed.R.Civ.P. 41(b); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996). Since plaintiff is deemed to have consented to granting defendants' motion to dismiss, this action should be dismissed with prejudice as to the County and Rose.
Rule 4(m) states that " [i]f a defendant is not served within 120 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Fed.R.Civ.P. 4(m). Where an order has been filed directing the USMS to serve the summons and complaint, a pro se prisoner plaintiff proceeding in forma pauperis " is entitled to rely" on USMS to accomplish service, so long as the plaintiff provides the necessary information to identify the defendant and help effectuate service. Puett v. Blandford, 912 F.2d 270, 274-275 (9th Cir.1990); accord, Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir.1994), abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)). If service cannot be accomplished due to the pro se plaintiff's " neglect" or " fault, " such as failing to provide sufficient information to identify or locate the defendant after being put on notice, dismissal is appropriate.
See Walker, 14 F.3d at 1421-1422 (holding that a prisoner failed to show cause why his claims against a prison official should not be dismissed under Rule 4(m) where the prisoner failed to show " that he provided the marshal with sufficient information to serve [the defendant]"); Pierce v. Woodford, 416 Fed.Appx. 660, 661 (9th Cir. 2011) (holding that the district court did not abuse its discretion in dismissing the plaintiff's claims for failure to serve the summons and complaint within 120 days " because [the plaintiff] failed to provide the necessary information to help effectuate service").
More than 120 days have passed since the complaint was filed on June 10, 2014. The USMS attempted to serve Coorba with the summons and complaint based on the information provided by plaintiff on Form USM-285 but was unable to do so. Therefore, this action should be dismissed as to Coorba without prejudice pursuant to Rule 4(m).
For the reasons described above, this action should be dismissed with prejudice as to the County and Rose, and dismissed without prejudice as to Coorba.