United States District Court, E.D. California
FINDINGS AND RECOMMENDATION THAT THE DISTRICT COURT
DISMISS THIS CASE
K. Oberto UNITED STATES MAGISTRATE JUDGE.
February 17, 2017, the undersigned filed an order to show
cause (the “OSC”), which included a warning to
Plaintiff that the undersigned would recommend dismissal of
this matter if Plaintiff failed to file a statement by no
later than March 9, 2017 showing cause as to why dismissal
was not warranted. (Doc. 27.) To date, Plaintiff has not
responded to the OSC. Accordingly, as discussed herein, the
undersigned RECOMMENDS that the presiding district court
judge DISMISS this case, in its entirety.
31, 2015, Plaintiff filed the Complaint, in which he alleges
that Defendants infringed on Plaintiff's constitutional
rights during the course of a traffic stop. (See
Doc. 1.) On September 30, 2016, Plaintiff filed a Notice of
Change of Address, in which he provided that his “new
address” is 1311 Annadale Ave., Sanger, CA 93657 (the
“Current Address”). (Doc. 19.) To date, Plaintiff
has not filed any additional documentation providing a
different mailing address.
order entered on December 22, 2016, the undersigned set a
scheduling conference for January 31, 2017, and directed the
parties to file their joint scheduling report by no later
than January 24, 2017. (Doc. 24.) Defendant filed a
scheduling report on January 24, 2017. (Doc. 25.) Plaintiff
did not participate in the creation of this scheduling
report, (see Doc. 25), and failed to appear at the
January 31, 2017 scheduling conference.
order entered on January 31, 2017, the undersigned cautioned
Plaintiff that it would “enter an order to show cause
as to why this matter should not be dismissed if, by no later
than February 14, 2017: (1) an attorney does not notice an
appearance [on behalf of Plaintiff] on the docket for this
case; or (2) Plaintiff does not file notice on the docket for
this case of his intent to continue litigating this
action.” (Doc. 26.) The Clerk mailed the January 31,
2017 order to Plaintiff at his Current Address on the same
February 17, 2017, no attorney noticed an appearance on
behalf of Plaintiff and Plaintiff did not notify the Court of
his intent to continue litigating this case. Consequently,
the undersigned entered the OSC on February 17, 2017. (Doc.
27.) In the OSC, the undersigned ordered “that, by no
later than March 9, 2017, Plaintiff shall file a statement
showing cause why the [undersigned] should not recommend to
the presiding district court judge that this action be
dismissed.” (Id. at 2.) The undersigned
further warned “Plaintiff that, if he fails to file
this statement by March 9, 2017, the [undersigned] will
recommend to the presiding district court judge that this
action be dismissed, in its entirety.” (Id.)
The Clerk mailed the OSC to Plaintiff at his Current Address
on February 17, 2017.
date, Plaintiff has not responded to the OSC. However, on
February 28, 2017, the copy of the January 31, 2017 order
that the Clerk mailed to Plaintiff at the Current Address was
returned as undeliverable. Similarly, on March 7, 2017, the
copy of the OSC that the Clerk mailed to Plaintiff at the
Current Address was returned as undeliverable.
Rule 110 provides that the “[f]ailure of counsel or 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 authorized by statute or Rule or within
the inherent power of the Court.” “District
courts have inherent power to control their dockets”
and “[i]n the exercise of that power they may impose
sanctions including, where appropriate, . . .
dismissal.” Thompson v. Hous. Auth. of City of
L.A., 782 F.2d 829, 831 (9th Cir. 1986) (citing Link
v. Wabash R.R. Co., 370 U.S. 626 (1961)).
“Dismissal . . . is so harsh a penalty it should be
imposed as a sanction only in extreme circumstances.”
Id. (citations omitted). Nonetheless, courts have
found that dismissal with prejudice is warranted where a
party fails “to prosecute an action, ”
“obey a court order, ” or “comply with
local rules.” Tolle v. Portfolio Recovery Assocs.
LLC, Case No. 1:15-cv-01797-LJO-SKO, 2017 WL 1079786, at
*1 (E.D. Cal. Mar. 21, 2017) (collecting cases).
Ninth Circuit has stated that “[c]ourts are to
weigh” the following “five factors in deciding
whether to dismiss a case for failure to comply with a court
order”: (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.” In re Phenylpropanolamine (PPA) Prods.
Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006)
(citation omitted). “These factors are ‘not a
series of conditions precedent before the judge can do
anything, ' but a ‘way for a district judge to
think about what to do.'” Id. (quoting
Valley Eng'rs Inc. v. Elec. Eng'g Co., 158
F.3d 1051, 1057 (9th Cir. 1998)). “The appropriateness
of a sanction is within the discretion of the [c]ourt.”
Raygoza v. City of Fresno, 297 F.R.D. 603, 606 (E.D.
present matter, the pertinent factors weigh in favor of
dismissing this action.Turning initially to the first factor,
the public's interest in expeditious resolution of
litigation clearly weighs in favor of dismissal. Plaintiff
has failed to demonstrate any interest in litigating this
case. Indeed, this matter is currently not on a schedule
because Plaintiff failed to (1) comply with the
undersigned's December 22, 2016 order directing the
parties to file a joint scheduling report, or (2) appear at
the January 31, 2017 scheduling conference. As such, there is
no indication that Plaintiff will litigate this action to
achieve any form of merits-based resolution, let alone an
expeditious resolution of the litigation. The first factor
thus weighs in favor of dismissal. See, e.g., Yourish v.
Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)
(“[T]he public's interest in expeditious resolution
of litigation always favors dismissal.”).
the second factor, Plaintiff has hindered the Court's
ability to manage its docket by failing to (1) comply with
the undersigned's orders pertaining to crafting a
scheduling order for this matter, or (2) respond to the
undersigned's January 31, 2017 order or the OSC. This
factor therefore weighs in favor of dismissal. See, e.g.,
Armstrong v. Spearman, No. 1:13-cv-00246-AWI-SAB (PC),
2015 WL 5021664, at *2 (E.D. Cal. Aug. 21, 2015)
(“[T]he Eastern District of California is one of the
busiest federal jurisdictions in the United States and its
District Judges carry the heaviest caseloads in the nation,
[so] the [c]ourt's interest in managing its docket weighs
in favor of terminating the action.”); cf. Gonzales
v. Mills, No. 1:09-cv-1549 AWI DLB, 2011 WL ...