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Frazier v. City of Rancho Cordova

United States District Court, E.D. California

July 1, 2016

CHRISTIAN J. FRAZIER, et al., Plaintiffs,
v.
CITY OF RANCHO CORDOVA, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         Through these findings and recommendations, the undersigned recommends that plaintiffs’ case be dismissed with prejudice. Plaintiffs repeatedly failed to comply with the court’s orders directing plaintiffs to file a status report, failed to appear at the status (pretrial scheduling) conference set on June 28, 2016, and have not made an appearance in this action since their counsel’s motion to withdraw from representation, which was filed on November 16, 2015, was granted. Furthermore, plaintiffs have failed to keep the court informed of their current address(es) despite the fact that the court has specifically notified them of their continuing duty to do so pursuant to Local Rule 182(f). Accordingly, for the reasons discussed below, the undersigned recommends that plaintiffs’ case be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b).

         I. BACKGROUND

         On April 22, 2015, defendant City of Rancho Cordova (“defendant”) removed this action to this court from the Sacramento County Superior Court on the basis of this court’s federal question jurisdiction. (ECF No. 1.) At the time of removal, plaintiffs were both represented by counsel. On April 29, 2015, defendant filed an answer.[1] (ECF No. 4.)

         Plaintiffs’ counsel filed a motion to withdraw from representation on November 16, 2015. (ECF No. 11.) In his motion, plaintiffs’ counsel represented that he sought to withdraw because he had been unable to get into contact with plaintiffs, both of whom are allegedly homeless, at any time in the prior several months, despite having made multiple attempts to do so and having left voice mail messages at the phone numbers they provided. (Id.) Plaintiffs’ counsel’s motion was granted by the assigned district judge on February 1, 2016. (ECF No. 14.)

         On March 7, 2016, the assigned district judge referred this case to the undersigned for all purposes, exclusive of the pretrial conference and trial, pursuant to Local Rule 302(c)(21) in light of the fact that all plaintiffs were now proceeding in this action in propria persona. (ECF No. 17.) Accordingly, on April 1, 2016, the undersigned issued an order setting this case for a status (pretrial scheduling) conference on May 12, 2016, and directed the parties to meet and confer and file a joint status report addressing certain topics no later than 14 days prior to the scheduled conference date. (ECF No. 18.)[2] Despite this order, none of the parties timely filed a status report. Accordingly, the undersigned issued an order to show cause (“OSC”) on May 4, 2016, directing the parties to show cause in writing why they should not be sanctioned for their failures to timely file a status report. (ECF No. 19.) The undersigned also directed plaintiffs to provide the court with their updated address(es) in compliance with Local Rule 182(f).[3] (Id.) Finally, the undersigned continued the status (pretrial scheduling) conference to June 30, 2016, and directed the parties to file a status report no later than 14 days prior to the conference date. (Id.)

         Defendant filed its response to the OSC and a status report on May 9, 2016. (ECF No. 9.) In its response, defendant represented that it had been unable to contact plaintiffs to meet and confer regarding the preparation of a joint status report and did not have any updated contact information for plaintiffs. (Id.) In light of this filing, the undersigned discharged the OSC as to defendant, but not plaintiffs. (ECF No. 22.)

         The status (pretrial scheduling) conference was held in this matter on June 30, 2016. (ECF No. 24.) Attorney Carl Fessenden appeared telephonically on behalf of defendant. (Id.) However, neither plaintiff made an appearance. (Id.) To date, neither plaintiff has responded to the court’s OSC, despite being warned that sanctions would issue for failing to respond, or has otherwise made an appearance in this action since plaintiffs’ counsel withdrew from representation.

         II. LEGAL STANDARDS

         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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