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White, v. City of Vallejo

United States District Court, E.D. California

March 23, 2017

CHRISTOPHER WHITE, ZERITA WHITE, G'SHELLE WHITE AND DANTRELL STEVENS, Plaintiffs,
v.
CITY OF VALLEJO, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE

         Plaintiffs are proceeding in this action pro se. This matter was, therefore, referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).

         On January 31, 2017, defendants filed a motion for summary judgment and noticed that motion for hearing before the undersigned on March 3, 2017. (ECF No. 69.) Pursuant to Local Rule 230(c) plaintiffs were to file oppositions or statements of non-opposition to defendants' motion “not less than fourteen (14) days preceding the noticed . . . hearing date.” No plaintiff, however, filed a timely opposition or statement of non-opposition.

         Accordingly, on February 24, 2017, the undersigned issued an order to show cause in writing within fourteen days as to why this action should not be dismissed for lack of prosecution. (ECF No. 71.) Plaintiffs were cautioned that failure to file a written response to that order could result in the undersigned recommending that this matter be dismissed. (Id. at 2.) Nonetheless, the time provided plaintiffs has expired and no plaintiff has not responded to the order to show cause in any way.

         ANALYSIS

         The factors to be weighed in determining whether to dismiss a case for lack of prosecution are as follows: (1) the public 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 on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d at 1260.

         Failure of a party to comply with the 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.” Local Rule 110. Any individual representing himself or herself without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local Rules, and all applicable law. Local Rule 183(a). A party's failure to comply with applicable rules and law may be grounds for dismissal or any other sanction appropriate under the Local Rules. Id.

         Here, plaintiffs failed to file a statement of opposition or non-opposition to defendants' motion for summary judgment. The undersigned issued an order to show cause that provided plaintiffs with an opportunity to show good cause for their conduct, along with a further opportunity to oppose defendants' motion. Plaintiffs failed to respond to that order in any way. The order to show cause specifically warned plaintiffs that the failure to file a written response to that order could result in a recommendation that this matter be dismissed.

         Plaintiffs' lack of prosecution of this case renders the imposition of monetary sanctions futile. Moreover, the public interest in expeditious resolution of litigation, the court's need to manage its docket, and the risk of prejudice to the defendant all support the imposition of the sanction of dismissal. Only the public policy favoring disposition on the merits counsels against dismissal. However, plaintiffs' failure to prosecute the action in any way makes disposition on the merits an impossibility. The undersigned will therefore recommend that this action be dismissed due to plaintiffs' failure to prosecute as well as plaintiffs' failure to comply with the court's orders. See Fed.R.Civ.P. 41(b).

         Accordingly, IT IS HEREBY ORDERED that:

         1) All future hearing dates in this action are vacated; and

         2) Defendants' January 31, 2017 motion for summary judgment (ECF No. 69) is denied without prejudice as having been rendered moot.[1]

         Also, IT IS HEREBY RECOMMENDED that:

         1) Plaintiffs August 29, 2014 amended complaint (ECF No. 8) be ...


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