United States District Court, E.D. California
JACINTO ROMERO, an individual; and RAMIRO CERDA, an individual d/b/a Yo No Fui Clothing, Plaintiffs,
v.
ALESSIA GIACOBINO, and individual; and DOES 1-10, inclusive, Defendants.
FINDINGS AND RECOMMENDATION THAT PLAINTIFFS'
MOTION FOR DEFAULT JUDGMENT BE DENIED FINDINGS AND
RECOMMENDATION THAT PLAINTIFFS' COMPLAINT SHOULD BE
DISMISSED WITH PREJUDICE FOR FAILURE TO PROSECUTE OBJECTIONS
DUE: 14 DAYS (DOC. 26)
SHEILA
K. OBERTO, UNITED STATES MAGISTRATE JUDGE
I.
INTRODUCTION
Plaintiffs
Jacinto Romero and Ramiro Cerda ("Plaintiffs")
filed a Complaint on December 16, 2013, for trademark
infringement, unfair competition, and false designation of
origin. (Doc. 1.) Defendant Alessia Giacobino was served with
a copy of the complaint on March 26, 2014, with an answer to
the complaint due April 16, 2014. (Doc. 5.) The clerk entered
default against Defendant on August 29, 2014 (Doc. 11), and
Plaintiffs filed their first Motion for Default Judgment on
November 13, 2014 (Doc. 15).
Because
Plaintiffs' Motion for Default Judgment was set for
submission without a hearing, Plaintiffs requested a hearing
to determine damages pursuant to Fed. R. Civ. Proc. 55(b)(2),
which was set for January 14, 2015. (Docs. 16; 17.) As
Defendant resides in Italy, Plaintiffs were unable to serve
Defendant with notice of the hearing and Plaintiffs requested
the hearing be rescheduled to allow them sufficient time to
effect service. (Doc. 18.) The hearing was vacated and reset
to June 17, 2015 -- a five-month extension of time. (Doc.
19.) Plaintiffs initiated service on the Defendant in Italy
on April 27, 2015, and requested a further continuance of the
hearing to determine damages. (Doc. 20.) The hearing was
reset to August 12, 2015. (Doc. 21.)
On June
3, 2015, Plaintiffs filed their "Notice Regarding
International Service of Process, " confirming that
international service had commenced upon Defendant of the
notice of the August 12, 2015, hearing to determine damages.
(Doc. 22.) On July 22, 2015, Plaintiffs filed a "Notice
Regarding International Service of Process and Request to
Reschedule Hearing to Determine Damages, " requesting
the hearing be reset for some time in November 2015. (Doc.
15.) Plaintiffs explained that Defendant has moved to a new
Italian city, and "[u]pon notice of a rescheduled
hearing date, Plaintiffs will take necessary steps to locate
and serve the [D]efendant." (Doc. 15.)
On July
29, 2015, after twice rescheduling the Hearing to Determine
Damages (Docs. 19; 21), the Court denied Plaintiffs'
third request to reschedule the hearing to determine damages
and denied without prejudice Plaintiff's Motion for
Default Judgment (Doc. 24.) On February 2, 2016, Plaintiffs
refiled their Motion for Default Judgment, and represented to
the Court they were now in possession of Defendant's
current address and able to accomplish international service
of upon Defendant. (Doc. 26.) After again requesting a
continuance to accomplish international service complying
with requirements imposed by the Hague Convention (Docs. 28;
29), a Hearing to Determine Damages was set for July 27,
2016, and Plaintiffs were ordered to serve Defendant with
Notice of the hearing on damages and the Motion for Default
Judgment by no later than June 29, 2016. (Doc. 30.)
Plaintiffs
were further ordered to file their proof of service with this
Court by no later than July 8, 2016, and cautioned that
should Plaintiffs fail to file proof of service by the
deadlines set by the Court, the motion would be denied and
the case would be recommended for dismissal for failure to
prosecute. (Doc. 30.) No proof of service was filed on July
8, 2016. (See Docket.)
II.
DISCUSSION
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 the imposition by the Court of any
and all sanctions . . . within the inherent power of the
Court." District courts have the inherent power to
control their dockets and "[i]n the exercise of that
power they may impose sanctions, including, where appropriate
. . . dismissal." Thompson v. Housing Auth.,
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, failure to obey a court order, or
failure to comply with local rules. See, e.g., Ghazali v.
Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for
noncompliance with local rule); Ferdik v. Bonzelet,
963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure
to comply with an order requiring amendment of complaint);
Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir.1988)
(dismissal for failure to comply with local rule requiring
pro se plaintiff to keep court apprised of address);
Malone v. U.S. Postal Service, 833 F.2d 128, 130-31
(9th Cir. 1987) (dismissal for failure to comply with court
order); Henderson v. Duncan, 779 F.2d 1421, 1424
(9th Cir. 1986) (dismissal for failure to prosecute and
failure to comply with local rules).
In
determining whether to dismiss an action for lack of
prosecution, failure to obey a court order, or failure to
comply with local rules, the court must consider several
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 defendant; (4)
the public policy favoring disposition of cases on their
merits; and (5) the availability of less drastic
alternatives. Pagtalunan v. Galaza, 291 F.3d 639,
642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at
1260-61; Thompson, 782 F.2d at 831);
Henderson, 779 F.2d at 1423-24; Malone, 833
F.2d at 130; Ferdik, 963 F.2d at 1260-61;
Ghazali, 46 F.3d at 53. "The public's
interest in expeditious resolution of litigation always
favors dismissal." Pagtalunan, 291 F.3d at 642
(quoting Yourish v. Cal. Amplifier, 191 F.3d 983,
990 (9th Cir. 1999)).
Here,
the Court finds that the public's interest in
expeditiously resolving this litigation and the Court's
interest in managing the docket weigh in favor of dismissal.
The third factor, risk of prejudice to defendants, also
weighs in favor of dismissal, since a presumption of injury
arises from the occurrence of unreasonable delay in
prosecuting an action. Anderson v. Air West, 542
F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public
policy favoring disposition of cases on their merits -- is
greatly outweighed by the factors in favor of dismissal
discussed herein. Finally, a court's warning to a party
that his failure to obey the court's order will result in
dismissal satisfies the "consideration of
alternatives" requirement. Ferdik, 963 F.2d at
1262; Malone, 833 F.2d at 132-33;
Henderson, 779 F.2d at 1424. The Court's March
9, 2016, minute order expressly ordered Plaintiffs to file
proof of service by July 8, 2016, and warned that failure to
file such proof of service would result in denial of the
motion and recommendation to the district judge that the case
be dismissed for failure to prosecute. (Doc. 30.) Thus,
Plaintiffs had adequate warning that sanctions, up to and
including dismissal of the case, would result from their
noncompliance with the Court's March 9, 2016, order.
Because
Plaintiffs have not filed any proof of service, the Court has
no information whether Defendant has been served. Despite the
Court's repeated admonitions (Docs. 24; 30), Plaintiffs
have demonstrated they are unable or unwilling to proceed
with prosecuting their case. Pursuant to Local Rule 110 and
the Court's inherent power to sanction, the undersigned
RECOMMENDS that this case be DISMISSED with prejudice.
III.
CONCLUSION AND RECOMMENDATION
Accordingly,
IT IS HEREBY RECOMMENDED that Plaintiffs' Motion for
Default Judgment (Doc. 26) be DENIED and this case be
DISMISSED with prejudice for failing to ...