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Montague v. Rosales

United States District Court, C.D. California

January 28, 2015

DEPUTY ROSALES, et al., Defendants

Bruce Robert Montague, Plaintiff, Pro se, San Dimas, CA.

For Deputy Rosales, Defendant: Elise Hyon Hur, Nelson and Fulton, Los Angeles, CA.


CARLA M. WOEHRLE, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable George H. King, Chief United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California. As stated below, this action should be dismissed without prejudice.


Plaintiff Bruce Robert Montague, proceeding pro se, opened this action with a request to proceed without prepayment of the filing fee filed March 15, 2013. [Docket no. 1.] Leave to file was granted and Plaintiff's Complaint was filed March 22, 2013. [Docket no. 3.] Plaintiff was granted leave to proceed to proceed in forma pauperis in an order filed September 3, 2013. [Docket no. 9.]

In an order filed January 9, 2014, the court directed the United States Marshal to serve the summons and complaint on two defendants, Deputy Rosales and Deputy Fernandez. [Docket no. 12.] In a minute order filed September 30, 2014, the court noted that Deputy Fernandez had not been served and had not appeared, and ordered Plaintiff to file a report, on or before October 24, 2014, indicating whether he wished to proceed against Deputy Fernandez and providing any additional information that might assist in service of process. [Docket no. 18.] Plaintiff has not responded to that minute order.[1]

Meanwhile, on May 28, 2014, Defendant Rosales filed his Answer. [Docket no. 15.] On September 30, 2014, the court issued an order setting a schedule for discovery and pre-trial motions. [Docket no. 17.] On December 30, 2014, Defendant Rosales filed his Motion to Compel Plaintiff's Responses to Interrogatories and Requests for Production of Documents; Motion to Deem Matters Admitted; and Request for Monetary Sanctions. [Docket no. 21.] In a minute order filed January 2, 2015, the court ordered Plaintiff to file a response to the motion on or before January 23, 2015. [Docket no. 22.] Plaintiff has not filed the ordered response and has not otherwise communicated with the court.

In his motion to compel, etc., Defendant Rosales indicates that Plaintiff made no response to Defendant's requests for interrogatories, requests for production of documents, requests for admissions, or requests to meet and confer. [Docket no. 21.] It is clear that, if Deputy Rosales's requests for admissions were to be deemed admitted, Plaintiff's action would be subject to dismissal for failure to state a claim. [ Id. ]


It is well established that district courts have authority to dismiss actions for failure to prosecute or to comply with court orders. See Fed.R.Civ.P. 41(b); Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010)(standard applied in dismissal for failure to prosecute); Link v. Wabash Railroad Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)(dismissal for failure to prosecute to avoid undue delay or congestion in court calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)(dismissal for failure to comply with any court order).

In deciding whether to dismiss for failure to prosecute or to comply with court orders a district court must consider 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." Omstead, 594 F.3d at 1084 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)); see also In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994)(failure to prosecute); Ferdik, 963 F.2d at 1260-61 (9th Cir. 1992)(failure to comply with court orders).

In the present action, the first two factors -- public interest in expeditious resolution of litigation and the court's need to manage its docket -- weigh in favor of dismissal. Plaintiff has not responded to legitimate discovery requests or to court orders despite repeated warnings. This hinders the court's ability to move this case toward disposition, and suggests that Plaintiff does not intend to litigate this action diligently.

The third factor -- prejudice to defendants -- also weighs in favor of dismissal. A rebuttable presumption of prejudice to a defendant arises when a plaintiff unreasonably delays prosecution of an action. See Eisen, 31 F.3d at 1452-53. Nothing suggests that such a presumption is unwarranted in this case.

The fourth factor -- public policy in favor of deciding cases on the merits -- ordinarily weighs against dismissal. However, it is a plaintiff's responsibility to move towards disposition at a reasonable pace, and avoid dilatory and evasive tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff has not discharged this responsibility, despite having been instructed on his responsibilities, granted sufficient time in which to discharge them, and warned of the consequences of failure to do so. In these circumstances, the policy favoring resolution of disputes on the merits does not outweigh Plaintiff's failure to obey court orders or to file responsive documents within the time granted.

The fifth factor -- availability of less drastic sanctions -- also weighs in favor of dismissal. The court cannot move the case toward disposition without plaintiff's compliance with court orders or participation in this litigation. Plaintiff has shown that he is either unwilling or unable to comply with court orders by filing responsive documents or otherwise cooperating in prosecuting this action. Other possible sanctions for Plaintiff's failures are not appropriate with respect to a litigant proceeding pro se and in forma pauperis.

Under these circumstances, dismissal for failure to prosecute is appropriate. Such a dismissal should not be entered unless a plaintiff has been notified that dismissal is imminent. See West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1523 (9th Cir. 1990). Here, however, Plaintiff has been warned repeatedly, and he will receive further notification with this Report and Recommendation and the accompanying notice of the right to file objections to it.[2]


Accordingly, the magistrate judge recommends that the court issue an order: (1) accepting this Report and Recommendation; (2) dismissing this action, without prejudice, for failure to prosecute and for reasons discussed in the Memorandum and Order filed January 14, 2014; and (3) denying as moot Defendant Rosales's motion to compel, etc. (docket no. 21, filed December 30, 2014).

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