United States District Court, E.D. California
ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE,
FAILURE TO COMPLY WITH A COURT ORDER, AND FAILURE TO COMPLY
WITH THE LOCAL RULES
BARBARA A. McAULIFFE, UNITED STATES MAGISTRATE JUDGE
Jesus Diaz (“Plaintiff”) is proceeding pro se and
in forma pauperis in this civil action under the Fair Labor
Standards Act, 29 U.S.C. § 201, et seq.
Plaintiff, through counsel, initiated this action on June 28,
2013. The parties have consented to the jurisdiction of the
United States Magistrate Judge. (Docs. 12, 13.)
October 31, 2016, the Court granted Plaintiff's counsel
leave to withdraw from this matter, and substituted Plaintiff
in as counsel in propria persona. The Court permitted the
withdrawal based on Plaintiff's failure to provide
counsel with his current address and phone number, and on the
inability of counsel to contact Plaintiff for several years.
(Doc. 54.) The Court's order was served on Plaintiff at
his last known address. On January 23, 2017, that order was
returned by the United States Post Office as Undeliverable,
RTS, Unknown, Illegible, Unable to Forward.
on Plaintiff's failure to update his address, on April 4,
2017, the Court issued an order for Plaintiff to show cause
in writing, within fourteen (14) days, why this action should
not be dismissed for failure to prosecute and failure to obey
a court order. Plaintiff was warned that the failure to
respond to the Court's order would result in dismissal of
this without further notice. (Doc. 55.) The order was served
on Plaintiff at his last known address. More than fourteen
days have passed, and Plaintiff has not responded to the
Court's order or otherwise contacted the Court.
to Local Rules 182 and 183, a pro se party is under a
continuing duty to notify the Clerk, the Court and all other
parties of any change of address or telephone number. Local
Rule 182(f), 183(b). If mail directed to a pro se plaintiff
by the Clerk is returned by the U.S. Postal Service, the
Court may dismiss the action without prejudice for failure to
prosecute if the plaintiff fails to notify the Court and
opposing parties within sixty-three (63) days of a current
address. Local Rule 183(b). Additionally, Local Rule 110
provides that “[f]ailure . . . of a party to comply
with these [Local] Rules or with any order of the Court may
be grounds for imposition by the Court of any and all
sanctions . . . within the inherent power of the
Court.” Further, the failure of Plaintiff to prosecute
this action is grounds for dismissal. In re
Phenylpropanolamine (PPA) Products Liability Litigation,
460 F.3d 1217, 1227 (9th Cir. 2006) (“Rule 41(b)
permits dismissal for failure of the plaintiff to prosecute
or to comply with any order of court”).
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 defendants; (4)
the public policy favoring disposition of cases on their
merits; and (5) the availability of less drastic sanctions.
Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988)
(internal quotation marks and citation omitted); accord
Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir.
2010); In re PPA, 460 F.3d at 1226. These factors
guide a court in deciding what to do, and are not conditions
that must be met in order for a court to take action. In
re PPA, 460 F.3d at 1226 (citation omitted).
case, Plaintiff's address change was due no later than
March 27, 2017. However, Plaintiff has failed to file a
change of address, has failed to respond to the Court's
show cause order and has not otherwise been in contact with
the Court. Furthermore, this action has been pending since
June 2013, and the Court finds that the public's interest
in expeditiously resolving this long-pending litigation and
the Court's interest in managing the docket weigh in
favor of dismissal. The third factor, risk of prejudice to
defendant, 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.
the Court has considered the availability of less drastic
sanctions Pagtalunan v. Galaza, 291 F.3d 639, 643
(9th Cir. 2002). However, given the Court's apparent
inability to communicate with Plaintiff, there are no other
reasonable alternatives available to address Plaintiff's
failure to prosecute this action and his failure to apprise
the Court of his current address. In re PPA, 460
F.3d at 1228-29; Carey v. King, 856 F.2d 1439, 1441
(9th Cir. 1988).
Conclusion and Order
reasons stated, it is HEREBY ORDERED that:
action is DISMISSED, without prejudice, based on
Plaintiff's failure to prosecute, failure to obey the
Court's order, and failure to follow the Court's
rules; and 2. ...