United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS DISMISSING THE ACTION
FOR PLAINTIFF’S FAILURE TO COMPLY WITH THE
COURT’S ORDERS
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
Plaintiff
Tanya Solesbee contends she suffered from sexual harassment
and a hostile work environment while participating in the
Work Release Assistance Program. (Doc. 1) However, Plaintiff
has failed to comply with the Court’s orders and failed
to prosecute this action. Accordingly, the Court recommends
the action be DISMISSED with prejudice.[1]
I.
Relevant Background
On May
20, 2016, the Court granted the motion filed by Waukeen McCoy
to withdraw as counsel for Plaintiff. (Doc. 76) The Court
ordered Plaintiff to “file a notification with the
Court indicating whether she intends to represent herself
going forward or whether she will retain a new
attorney” no later than June 3, 2016. (Id. at
3) The Court instructed Plaintiff that if she intended to
hire an attorney, she must notify the Court regarding when
that would occur. (Id.)
Plaintiff
failed to respond to the Court’s order. As a result,
the Court issued an order to show cause why the action should
not be dismissed for the failure to respond to the
Court’s order, or in the alternative, “to file a
notification indicating whether she intends to represent
herself.” (Doc. 77 at 2) To date, Plaintiff has not
responded to either order of the Court, or taken any further
action to prosecute the matter.
II.
Failure to Prosecute and Obey the Court’s
Orders
The
Local Rules, corresponding with Fed.R.Civ.P. 11, provide:
“Failure of counsel or of a party to comply with . . .
any order of the Court may be grounds for the imposition by
the Court of any and all sanctions . . . within the inherent
power of the Court.” LR 110. “District courts
have inherent power to control their dockets, ” and in
exercising that power, a court may impose sanctions including
dismissal of an action. Thompson v. Housing Authority of
Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court
may dismiss an action with prejudice, based on a
party’s failure to prosecute an action or failure to
obey a court order, or failure to comply with local rules.
See, e.g. Ferdik v. Bonzelet, 963
F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to
comply with an order requiring amendment of complaint);
Malone v. U.S. Postal Service, 833 F.2d 128, 130
(9th Cir. 1987) (dismissal for failure to comply with a court
order); Henderson v. Duncan, 779 F.2d 1421, 1424
(9th Cir. 1986) (dismissal for failure to prosecute and to
comply with local rules).
III.
Discussion and Analysis
To
determine whether to dismiss an action for failure to
prosecute and failure to obey a Court order, the Court must
consider several factors, including: “(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.”
Henderson, 779 F.2d at 1423-24; see also
Ferdik, 963 F.2d at 1260-61; Thomspon, 782 F.2d
at 831.
In the
case at hand, the public’s interest in expeditiously
resolving this litigation and the Court’s interest in
managing the docket weigh in favor of dismissal. See
Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir.
1999) (“The public’s interest in expeditious
resolution of litigation always favors dismissal”);
Ferdik, 963 F.2d at 1261 (recognizing that district
courts have inherent interest in managing their dockets
without being subject to noncompliant litigants). Judges in
the Eastern District of California carry the heaviest
caseload in the nation, and this Court cannot, and will not
hold, this action in abeyance given Plaintiff’s failure
to comply with the Court’s orders and failure to
prosecute. The risk of prejudice to the defendants also
weighs in favor of dismissal, since a presumption of injury
arises from the occurrence of unreasonable delay in
prosecution of an action. See Anderson v. Air West,
542 F.2d 522, 524 (9th Cir. 1976).
Significantly,
the Ninth Circuit determined a court’s warning to a
party that failure to obey the court’s order will
result in dismissal satisfies the requirement that less
drastic sanctions be considered. Malone, 833 F.2d at
131; see also Ferdik, 963 F.2d at 1262. As the Ninth
Circuit explained, “a plaintiff can hardly be
surprised” by a sanction of dismissal “in
response to willful violation of a [court] order.”
Malone, 833 F.2d at 133. Here, Plaintiff was warned
that “her failure to comply with this or any order
of the Court may result in the action being
dismissed.” (Doc. 76 at 3, emphasis in original).
Again, in the order to show cause Plaintiff was advised that
failure to comply with the Court’s orders would result
in dismissal of action. (Doc. 77 at 1-2) Thus, Plaintiffs
received adequate warning that dismissal would result from
her noncompliance with the Court’s orders, which
satisfies the Court’s obligation to consider lesser
sanctions. See Malone, 833 F.2d at 131. Given these
facts, the policy favoring disposition of cases on their
merits is outweighed by the factors in favor of dismissal.
IV.
Findings and Recommendations
Plaintiff
failed to comply with, or otherwise respond to, the
Court’s orders dated May 20, 2016 (Doc. 76) and June 8,
2016 (Doc. 77). Consequently, Plaintiff also failed to
continue the prosecution ...