United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL
OF CASE FOR FAILURE TO PROSECUTE AND FAILURE TO COMPLY WITH
COURT ORDER (ECF NO. 3)
Brian O'Dell, Sr. and Candice O'Dell, appearing
pro se, filed a Complaint on April 7, 2017. (ECF No.
1.) Plaintiffs also filed a motion to proceed in forma
pauperis. After reviewing the Complaint and Motion, the
Court determined that both filings contained private
identifying information concerning minors. (ECF No. 3.) On
April 12, 2017, the Court struck both filings and instructed
Plaintiffs to correct the error and refile their pleadings
within 14 days. Plaintiffs were also warned that a
preliminary review of the Complaint suggested that the Court
may not have subject matter jurisdiction to hear the case
because it revolved around the eviction of the Plaintiffs
from a mobile home. Plaintiffs were warned that a failure to
file a Complaint that complied with the Federal Rules of
Civil Procedure and Local Rules would lead to dismissal of
the case. More than 14 days have passed and Plaintiffs have
not responded to the Order.
Local Rules, corresponding with Rule 11 of the Federal Rules
of Civil Procedure, provide, “[f]ailure 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.” Local Rule 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
Auth. 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
determine whether to dismiss this action for failure to
comply with the directives set forth in its order, “the
Court must weigh the following 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 defendants/respondents; (4) the availability of
less drastic alternatives; and (5) the public policy favoring
disposition of cases on their merits.” Pagtalunan
v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002), citing
Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
public's interest in expeditious resolution of litigation
always favors dismissal, '” id., quoting
Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir.
1999), and here, the action is pending and lacks a complaint.
Plaintiffs were instructed to file a complaint and have not
complied. Plaintiffs' failure to respond to the
Court's order reflects Plaintiffs' lack of interest
in prosecuting this case. Thus, both the first and second
factors weigh in favor of dismissal.
to the risk of prejudice, there is currently no operative
complaint that states a claim, minimizing the risk of
prejudice due to dismissal at this stage. Moreover,
“pendency of a lawsuit is not sufficiently prejudicial
in and of itself to warrant dismissal.” Id.,
citing Yourish, 191 F.3d at 991. In addition,
“delay inherently increases the risk that
witnesses' memories will fade and evidence will become
stale, ” id., even assuming that Plaintiffs
could state a cause of action. Therefore, the third factor
weighs in favor of dismissal.
the availability of lesser sanctions, at this stage in the
proceedings there is little available to the Court which
would constitute a satisfactory lesser sanction while
protecting the Court from further unnecessary expenditure of
its scarce resources. Monetary sanctions are of little use,
and given the early stage of these proceedings, the
preclusion of evidence or witnesses is not available.
public policy favors disposition on the merits, this factor
will always weigh against dismissal. Id. at 643.
Even this factor is mitigated, however, by the fact that
Plaintiffs' lack of action means that there is no active
complaint in this case. Thus, any “merits” the
case may have are entirely hypothetical.
there is now no operative complaint in this action.
Plaintiffs were warned in the Court's Order that their
failure to respond to the Order would result in the dismissal
of his case. (ECF No. 3.) Accordingly, this case should be
on the foregoing, it is hereby recommended that:
1. This action be DISMISSED for Plaintiffs' failure to
comply with the Court's orders and for Plaintiffs'
failure to prosecute this action; and,
2. The Clerk of Court be DIRECTED to close this case.
Findings and Recommendations will be submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of Title 28 U.S.C. § 636(b)(1). Within
fourteen (14) days after being served with these Findings and
Recommendations, Plaintiff may file written objections with
the Court. The document should be captioned “Objections
to Magistrate Judge's Findings and
Recommendations.” Plaintiff is advised that failure to
file objections within the specified time may result in the
waiver of the “right to challenge the magistrate's