United States District Court, E.D. California
ESTHER S. LONG, et al. Plaintiffs,
v.
HOME DEPOT, USA, INC., et al., Defendants.
FINDINGS AND RECOMMENDATIONS DISMISSING THE ACTION
FOR PLAINTIFFS’ FAILURE TO COMPLY WITH THE
COURT’S ORDERS AND FAILURE TO PROSECUTE
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE.
Plaintiffs
Esther Long and Ronald Long have failed to comply with the
Court’s orders and failed to continue prosecuting this
action. Accordingly, the Court recommends the action be
DISMISSED with prejudice.
I.
Relevant Background
On May
27, 2016, Defendant Clopay Building Products Company, Inc.,
filed an ex parte application for modification of the
Court’s scheduling order. (Doc. 35) The Court issued a
minute order, directing Plaintiffs to “file a
brief--not to exceed 5 pages--in opposition or a statement of
non-opposition to Defendant's request to modify the
scheduling order.” (Doc. 37) Plaintiffs failed to
respond to the order, after which the Court ordered
Plaintiffs and their counsel “to show cause in writing
why sanctions, up to and including terminating sanctions,
should not be imposed for their failure to comply with the
Court’s order.” (Doc. 38 at 2) To date,
Plaintiffs have continued to ignore the Court’s orders,
and have not 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 Plaintiffs’ 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. Plaintiffs were warned
failure to show cause may result in the issuance of sanctions
“up to and including terminating sanctions.”
(See Doc. 38 at 2) Significantly, a warning that
dismissal would result from noncompliance with the
Court’s orders, satisfies the 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
Plaintiffs
failed to comply with, or otherwise respond to, the
Court’s orders dated June 7, 2016 (Doc. 37) and June
15, 2016 (Doc. 38). Consequently, Plaintiffs also failed to
continue the prosecution of this action. Based upon the
foregoing, IT IS HEREBY RECOMMENDED:
1. This
action be DISMISSED with prejudice; and
2. The
Clerk of Court be DIRECTED ...