United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR
FAILURE TO PROSECUTE AND OBEY THE COURT'S ORDERS (DOCS.
11, 15) OBJECTIONS DUE: 14 DAYS
K. OBERTO UNITED STATES MAGISTRATE JUDGE
March 5, 2019, Plaintiff Hussein Ali, proceeding pro
se, filed a complaint against Defendants Trans Union
and Experian Information Solutions, Inc., in Fresno County
Superior Court. (Doc. 1-1.) On April 5, 2019, Defendant
Experian removed the case to this court. (Doc. 1.)
Court set a Mandatory Scheduling Conference for June 27,
2019, and ordered the parties to file a Joint Scheduling
Report by June 20, 2019. (Doc. 2.)
27, 2019, Plaintiff failed to appear at the scheduling
conference. (Doc. 11.) Thus, the Court continued the
scheduling conference to August 8, 2019, and directed the
parties to file an updated joint scheduling report by August
1, 2019. (Id.) The Court also warned Plaintiff:
“The Court ADMONISHES Plaintiff that if he
fails to appear without good cause at the scheduling
conference on August 8, 2019, the Court will recommend to the
assigned district judge that Plaintiff's complaint be
dismissed for failure to prosecute and failure to comply with
a court order.” (Id.) (emphasis in
original). On August 8, 2019, Plaintiff failed to appear at
the Mandatory Scheduling Conference. (See Doc. 14.)
Plaintiff's failure to appear at the scheduling
conference, the Court entered an Order to Show Cause
(“OSC”) directing Plaintiff to show cause by
August 22, 2019, why the Court should not recommend that the
case be dismissed for failure to prosecute and failure to
comply with the Court's orders. (Doc. 15 at 3.) Plaintiff
failed to respond to the OSC by August 22, 2019 and has not
filed a response to date.
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.” E.D. Cal. L.R. 110. District courts have the
inherent power to control their dockets and “[i]n 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, with prejudice, 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. Moran, 46 F.3d 52, 53-54 (9th Cir.
1995) (dismissal for noncompliance with local rule);
Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir.
1988) (dismissal for failure to comply with local rule
requiring pro se plaintiff to keep court apprised of
address); Malone v. U.S. Postal Service, 833 F.2d
128, 130-31 (9th Cir. 1987) (dismissal for failure to comply
with court order); Henderson v. Duncan, 779 F.2d
1421, 1424 (9th Cir. 1986) (dismissal for failure to
prosecute and failure to comply with local rules); Lopez
v. Chase Home Fin., No. CVF09-0449 LJOGSA, 2009 WL
1098760, at *1 (E.D. Cal. Apr. 20, 2009) (dismissal of
certain defendants for failure to comply with court).
determining whether to dismiss an action for failure to obey
a court order or failure to comply with the Local Rules, 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; Thompson, 782 F.2d
at 831. “The public's interest in expeditious
resolution of litigation always favors dismissal.”
Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.
2002) (quoting Yourish v. Cal. Amplifier, 191 F.3d
983, 990 (9th Cir. 1999)).
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,
as it appears Plaintiff lacks interest in pursuing this case.
The third factor, risk of prejudice to Defendant, also weighs
in favor of dismissal, since a presumption of injury arises
from the occurrence of 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 greatly outweighed by
the factors in favor of dismissal discussed herein. Finally,
a court's warning to a party that the failure to obey the
court's order will result in dismissal satisfies the
“consideration of alternatives” requirement.
Malone, 833 F.2d at 132-33; Henderson, 779
F.2d at 1424.
June 27, 2019 Order expressly warned Plaintiff that his
failure to appear at the August 8, 2019 Mandatory Scheduling
Conference would result in the undersigned recommending
dismissal of this case. (Doc. 11.) The August 8, 2019 OSC
expressly ordered Plaintiff to file a statement showing cause
why the Court should not recommend to the assigned district
judge that this case be dismissed. (Doc. 15 at 3.) Thus,
Plaintiff had adequate warning that sanctions, up to and
including dismissal of the case, would result from his
noncompliance with the OSC. Plaintiff has demonstrated a
general lack of concern for court orders throughout the case
and the Court has warned Plaintiff regarding his failure to
prosecute this case and follow the Court's Orders.
(See Docs. 11, 15.)
light of the foregoing, and pursuant to Local Rule 110 and
the Court's inherent sanction authority, the undersigned
RECOMMENDS that this case be dismissed with prejudice.
reasons set forth above, IT IS HEREBY RECOMMENDED that this
action be DISMISSED WITH PREJUDICE based on Plaintiff's
failure to obey the Court's Orders of June 27, 2019,
(Doc. 11), and August 8, 2019, (Doc. 15), and Plaintiff's
failure to prosecute the case.
Court further DIRECTS the Clerk to send a copy of this order
to Plaintiff at his address ...