United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL
OF PLAINTIFF'S CASE FOR FAILURE TO PROSECUTE
March 17, 2017, Defendant Trans Union LLC removed this case
from Fresno County Superior Court. (ECF No. 3.) The Court set
an initial scheduling conference in the case for June 13,
2017. (ECF No. 6.) The parties were instructed that
attendance at the scheduling conference was mandatory.
Plaintiff reviewed and approved the parties' joint
scheduling report, which denotes the time and date of the
scheduling conference on its front page, before it was filed.
(ECF No. 19.)
and Defendant Equifax, Inc. did not appear at the scheduling
conference. The Court issued an Order to Show Cause why
sanctions should not issue. (ECF No. 20.) The parties were
warned that a failure to respond to the Order to Show Cause
could lead to the sanctions, including monetary sanctions or
dismissal of the case. The parties were also instructed to
appear at an order to show cause hearing on June 22, 2017.
Equifax, Inc. responded to the Order to Show Cause and
provided a satisfactory explanation for its absence. (ECF No.
21.) Defendant Equifax, Inc. also appeared at the order to
show cause hearing.
however, did not respond to the Order to Show Cause, nor did
she appear at the hearing.
Rule 110 provides that "[f]ailure of counsel or of a
party to comply with these Rules or 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." District courts have the inherent power to
control their dockets and "in the exercise of that
power, they may impose sanctions including, where appropriate
. . . dismissal." Thompson v. Housing Auth.,
782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an
action based on a party's failure to prosecute an action,
failure to obey a court order, or failure to comply with
local rules. See, e.g., Ghazali v. Moron, 46 F.3d
52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with
local rule); Ferdik v. Bonzelet, 963 F.2d 1258,
1260-61 (9th Cir. 1992) (dismissal for failure to comply with
an order requiring amendment of complaint); Henderson v.
Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal
for lack of prosecution and failure to comply with local
determine 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
alternatives. Ghazali, 46 F.3d at 53;
Ferdik, 963 F.2d at 1260-61; Henderson, 779
F.2d at 1423-24.
instant case, the Court finds that the public's interest
in expeditiously resolving this litigation and the
Court's interest in managing the docket weigh in favor of
dismissal because the case has been pending since January 31,
2017, the date it was filed in Fresno County Superior Court.
Following the settlement and dismissal of a single defendant,
however, Plaintiff has shown no interest in participating in
the litigation any further. The third factor, risk of
prejudice to defendants, also weighs in favor of dismissal
because a presumption of injury arises from any 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 outweighed by the factors in favor of dismissal.
Finally, a court's warning to a party that her failure to
obey the court's order will result in dismissal satisfies
the "consideration of alternatives" requirement.
Ferdik, 963 F.2d at 1262; Henderson, 779
F.2d at 1424. The Court's Order to Show Cause stated that
the case could be dismissed if Plaintiff failed to respond to
the Order to Show Cause. (ECF No. 20.) Moreover, there are
few sanctions that could compel Plaintiffs to prosecute an
action that they are simply uninterested in pursuing,
particular at this early stage of litigation.
IT IS HEREBY RECOMMENDED that this action be DISMISSED for
Plaintiffs' failure to prosecute the action, to appear,
and comply with the Court's orders of March 17, 2017 and
June 13, 2017.
FURTHER ORDERED that the Order to Show Cause with respect to
Defendant Equifax, Inc. only is discharged.
findings and recommendations will be submitted to the United
States District Judge assigned to this case pursuant to the
provisions of Title 28 of the United States Code section
636(b)(1). Within fourteen (14) days after being served with
these findings and recommendations, the parties may file
written objections with the Court. The document should be
captioned "Objections to Magistrate Judge's Findings
and Recommendations." The parties are advised that
failure to file objections within the specified ...