United States District Court, E.D. California
MARIBEL M. WATSCHKE, Plaintiff,
DEPARTMENT OF THE AIR FORCE, Defendant.
FINDINGS AND RECOMMENDATIONS DISMISSING THE ACTION
WITHOUT PREJUDICE FOR PLAINTIFF'S FAILURE TO COMPLY WITH
THE COURT'S ORDER AND FAILURE TO PROSECUTE
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
Watschke claims she was forced to quit her job without due
process when she complained about her co-worker cursing in
her presence and having a bad temper. Because Plaintiff has
failed to comply with the Court's order to file an
amended complaint and failed to prosecute the action, it is
recommended the action be DISMISSED without
initiated this action by filing a complaint in the Central
District of California on January 30, 2017. (Doc. 1) The
Court transferred the matter to the Eastern District, thereby
initiating the matter with this Court on September 8, 2017.
Because Plaintiff sought to proceed in forma
pauperis, the Court screened the compliant and found she
failed to allege facts sufficient to support the claim
alleged. (Doc. 10) The Court granted Plaintiff leave to amend
the complaint, and she filed a First Amended Complaint on
October 12, 2017. (Doc. 12) Again, the Court determined
Plaintiff failed to state a claim but granted Plaintiff a
final opportunity to amend the pleadings. (Doc. 12)
was directed to file a Second Amended Complaint within thirty
days from the date of service. (Doc. 12 at 5) However,
Plaintiff did not do so. Therefore, on March 7, 2018, the
Court ordered Plaintiff to show cause “why the action
should not be dismissed for her failure to comply with the
Court's order or to file a second amended complaint.
(Id.) To date, Plaintiff has not responded.
Failure to Prosecute and Obey the Court's
Local Rules, corresponding with Fed.R.Civ.P. 11, provide:
“Failure 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.” LR 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 Authority of
Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court
may dismiss an action for a party's failure to prosecute
an action or failure to obey a court order. See,
e.g. Ferdik v. Bonzelet, 963 F.2d 1258,
1260-61 (9th Cir. 1992) (dismissal for failure to comply with
an order to file an amended 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
Discussion and Analysis
determine whether to dismiss an action for failure to
prosecute and failure to obey a Court order, the Court must
consider several factors, including: “(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.”
Henderson, 779 F.2d at 1423-24; see also
Ferdik, 963 F.2d at 1260-61; Thomspon, 782 F.2d
Public interest and the Court's docket
case at hand, the public's interest in expeditiously
resolving this litigation and the Court's interest in
managing the docket weigh in favor of dismissal. See
Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir.
1999) (“The public's interest in expeditious
resolution of litigation always favors dismissal”);
Ferdik, 963 F.2d at 1261 (recognizing that district
courts have inherent interest in managing their dockets
without being subject to noncompliant litigants). This Court
cannot, and will not hold, this case in abeyance based upon
Plaintiff's failure to comply with the Court's orders
and failure to take action to continue prosecution in a
timely manner. See Morris v. Morgan Stanley &
Co., 942 F.2d 648, 652 (9th Cir. 1991) (a plaintiff has
the burden “to move toward… disposition at a
reasonable pace, and to refrain from dilatory and evasive
tactics”). Accordingly, these factors weigh in favor of
dismissal of the action.
Prejudice to Defendant
determine whether the defendant suffers prejudice, the Court
must “examine whether the plaintiff's actions
impair the … ability to go to trial or threaten to
interfere with the rightful decision of the case.”
Malone, 833 F.2d at 131 (citing Rubin v. Belo
Broadcasting Corp., 769 F.2d 611, 618 (9th Cir. 1985)).
Significantly, a presumption of prejudiced arises when a
plaintiff unreasonably delays the prosecution of an action.
See Anderson v. Air West, 542 F.2d 522, 524 (9th
Cir. 1976). Here, Plaintiff has not taken any action to
further prosecuting the action, despite being ordered by the
Court to do so. Therefore, this factor weighs in favor of
Consideration of less ...