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Lira v. City of Bakersfield

United States District Court, E.D. California

May 8, 2018

VERONICA LIRA, et al., Plaintiffs,
v.
CITY OF BAKERSFIELD, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS DISMISSING THE CLAIMS OF PLAINTIFF SARAI LORENZANA WITHOUT PREJUDICE FOR FAILURE TO COMPLY WITH THE COURT'S ORDER AND FAILURE TO PROSECUTE THE ACTION

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         Plaintiffs contend the defendants caused the death of Jose Vilorio through the use of excessive force. However, each of the plaintiffs, including Sara Lorenzana, failed to comply with the Court's order to indicate their willingness to proceed with this action and failed to take any other action to prosecute the matter. Accordingly, the Court recommends that the claims of Sarai Lorenzana be DISMISSED without prejudice.

         I. Relevant Background

         On October 31, 2017, the defendants propounded written discovery, including interrogatories and requests for production to the plaintiffs, who failed to respond to the discovery requests. (Doc. 18-2 at 2-3) Defendants filed a motion to compel discovery on February 1, 2018, which Plaintiffs did not oppose. (Doc. 18) On February 22, 2018, the Court granted the motion to compel discover and ordered Plaintiffs to show cause why sanctions should not be imposed for their failure to prosecute this action. (Docs. 21-22)

         On February 27, 2018, Mr. Whittington filed a motion to withdraw as counsel. (Doc. 23) The Court held at hearing on the motion to withdraw on April 6, 2018. Plaintiffs did not oppose the motion either in writing or at the hearing. (See Doc. 31 at 3)

         The Court granted counsel's motion to withdraw on April 6, 2018. (Doc. 31) At that time, the Court ordered: “Plaintiffs SHALL notify the Court in writing of their intent to proceed with this action no later than April 20, 2018.” (Id. at 4, emphasis in original) In addition, the Court advised Plaintiffs that “failure to comply with this order will result in a recommendation that the action be dismissed pursuant to Local Rule 110.” (Id., emphasis omitted). After plaintiffs Veronica Lira, Viveny Aceves, and Abigail Vilorio failed to respond to the Court's order, the Court recommended their claims be dismissed.

         The order served upon Sarai Lorenzana was returned as undeliverable to the Court on April 13, 2018. The Court re-served Ms. Lorenzana at the address provided by the expired forwarding order and ordered Ms. Lorenzana to respond “[n]o later than May 4, 2018.” (Doc. 32 at 2, emphasis in original) To date, this order has not been returned as undeliverable, and Ms. Lorenzana has not complied with the Court's order, or taken any other action to continue prosecuting the claims in this action.

         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' 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 the plaintiffs' failure to comply with the Court's order 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 terminating sanctions.

         B. ...


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