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Watschke v. Department of Air Force

United States District Court, E.D. California

March 29, 2018

MARIBEL M. WATSCHKE, Plaintiff,
v.
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

         Maribel 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 prejudice.

         I. Relevant Background

         Plaintiff 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)

         Plaintiff 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.

         II. Failure to Prosecute and Obey the Court's Orders

         The 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 local rules).

         III. Discussion and Analysis

         To 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 at 831.

         A. Public interest and the Court's docket

         In the 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.

         B. Prejudice to Defendant

         To 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 dismissal.

         C. Consideration of less ...


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