United States District Court, E.D. California
AHMAD J. ALJINDI, Plaintiff,
NORTHCENTRAL UNIVERSITY, Defendant.
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
Ahmad J. Aljindi, proceeding without counsel, commenced this
action on September 26, 2017, and was granted leave to
proceed in forma pauperis. (ECF Nos. 1, 4.)
Plaintiff has filed several motions in this matter: to
disqualify the magistrate judge; to utilize the court's
electronic filing system; to appoint counsel; to transfer
venue; and for default judgment. (See ECF Nos. 3, 7,
13, 14, 16, 23, 38, 46.) The court has denied each of these
motions, as each has been without merit or sufficient legal
justification. (See ECF Nos. 4, 11, 20, 26, 57.)
November 9, 2017, plaintiff filed his first amended
complaint, which defendant then moved to dismiss. (ECF Nos.
18, 41.) The court granted defendant's motion to dismiss
on February 23, 2018. (ECF No. 57 at 12.) At the same time,
plaintiff was granted leave to amend. (Id.)
Specifically, the court ordered plaintiff to “file
either (a) a second amended complaint . . . or (b) a notice
of voluntary dismissal of the action” within 28 days.
(Id.) As such, plaintiff's deadline to file a
second amended complaint was March 23, 2018.
court explicitly warned plaintiff that “[f]ailure to
file either a second amended complaint or a notice of
voluntary dismissal by the required deadline may result in
the imposition of sanctions, including dismissal of the
action with prejudice pursuant to Federal Rule of Civil
Procedure 41(b).” (Id.) Although the
applicable deadline has now passed, plaintiff has failed to
file an amended complaint or notice of voluntary dismissal.
Therefore, the court recommends dismissal at this juncture.
District Local 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 imposition by the Court
of any and all sanctions authorized by statute or Rule or
within the inherent power of the Court.” Moreover,
Eastern District Local Rule 183(a) provides, in part:
Any individual representing himself or herself without an
attorney is bound by the Federal Rules of Civil or Criminal
Procedure, these Rules, and all other applicable law. All
obligations placed on “counsel” by these Rules
apply to individuals appearing in propria persona. Failure to
comply therewith may be ground for dismissal, judgment by
default, or any other sanction appropriate under these Rules.
also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)
(“Pro se litigants must follow the same rules of
procedure that govern other litigants”) (overruled on
other grounds). A district court may impose sanctions,
including involuntary dismissal of a plaintiff's case
pursuant to Federal Rule of Civil Procedure 41(b), where that
plaintiff fails to prosecute his or her case or fails to
comply with the court's orders, the Federal Rules of
Civil Procedure, or the court's local rules. See
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991)
(recognizing that a court “may act sua sponte to
dismiss a suit for failure to prosecute”); Hells
Canyon Preservation Council v. U.S. Forest Serv., 403
F.3d 683, 689 (9th Cir. 2005) (stating that courts may
dismiss an action pursuant to Federal Rule of Civil Procedure
41(b) sua sponte for a plaintiff's failure to prosecute
or comply with the rules of civil procedure or the
court's orders); Ghazali v. Moran, 46 F.3d 52,
53 (9th Cir. 1995) (per curiam) (“Failure to follow a
district court's local rules is a proper ground for
dismissal”); Ferdik v. Bonzelet, 963 F.2d
1258, 1260 (9th Cir. 1992) (“Pursuant to Federal Rule
of Civil Procedure 41(b), the district court may dismiss an
action for failure to comply with any order of the
court”); Thompson v. Housing Auth. of City of
L.A., 782 F.2d 829, 831 (9th Cir.1986) (per curiam)
(stating that district courts have inherent power to control
their dockets and may impose sanctions including dismissal or
must weigh five factors in determining whether to dismiss a
case for failure to prosecute, failure to comply with a court
order, or failure to comply with a district court's local
rules. See, e.g., Ferdik, 963 F.2d at 1260.
Specifically, the court must consider:
(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.
at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d
639, 642-43 (9th Cir. 2002); Ghazali, 46 F.3d at 53.
The Ninth Circuit Court of Appeals has stated that
“[t]hese 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.” In re
Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d
1217, 1226 (9th Cir. 2006).
involuntary dismissal can be a harsh remedy, on balance the
five relevant factors weigh in favor of dismissal here. The
first two Ferdik factors strongly support dismissal,
given that plaintiff's failure to comply with the
court's order and failure to prosecute his case have
unreasonably delayed the progress of this litigation.
Moreover, plaintiff's failure to timely file a second
amended complaint, as ordered, is especially egregious
because he clearly knows how to file motions and pleadings.
Plaintiff has already filed eight motions and two complaints
in this matter. (See ECF Nos. 1, 3, 7, 13, 14, 16,
18, 23, 38, 46.)
third Ferdik factor also favors dismissal. Defendant
has already appeared, and made clear its intention to have
this matter resolved. Yet, plaintiff's failure to
prosecute the case has hampered defendant's ability to
move this case forward towards resolution.
the fifth Ferdik factor, which considers the
availability of less drastic measures, also supports
dismissal. The court already attempted less drastic measures,
when it afforded plaintiff leave to amend. However, given
plaintiff's in forma pauperis status, monetary
sanctions would be futile. Further, because plaintiff has
failed to provide a complaint that states a valid cause of
action, the court cannot fashion any other sort of lessor
sanction, at this juncture.
the court finds that the fourth Ferdik factor, which
addresses the public policy favoring disposition of cases on
the merits, does not materially counsel against dismissal. If
anything, a disposition on the merits has been hindered by
plaintiffs own failure to comply with the court's order
and to prosecute his case. In any ...