United States District Court, E.D. California
JAMES R. MCCOY Plaintiff,
BECKER, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.
2, 2019, the court granted plaintiff's application to
proceed in forma pauperis and dismissed plaintiff's
original complaint with leave to amend. (ECF No. 5.)
Plaintiff was given 28 days to file either an amended
complaint or a notice of voluntary dismissal of the action.
(Id.) Additionally, plaintiff was cautioned that
failure to file either an amended complaint or a notice of
voluntary dismissal by the required deadline may result in
dismissal of the action with prejudice pursuant to Federal
Rule of Civil Procedure 41(b). (Id.) The July 2,
2019 order was subsequently returned as undeliverable.
plaintiff failed to file either an amended complaint or a
notice of voluntary dismissal by the required deadline, the
court considered whether the action should be dismissed.
Nevertheless, in light of plaintiff's pro se status, and
the court's desire to resolve the action on the merits,
the court on August 13, 2019, issued an order to show cause
as to why this action should not be dismissed. (ECF No. 6.)
The court also provided plaintiff with an additional
opportunity to file an amended complaint. (Id.)
Plaintiff's response to the order to show cause and his
first amended complaint were due within 14 days of that
order, i.e., by August 27, 2019. (Id.) Plaintiff was
again expressly cautioned that failure to timely comply with
all terms of the order would result in dismissal of the
action with prejudice pursuant to Federal Rule of Civil
Procedure 41(b). (Id.) The August 13, 2019 order was
also returned to this court as undeliverable.
the August 27, 2019 deadline has now passed, plaintiff failed
to respond to the order to show cause, and failed to file an
amended complaint. Therefore, at this juncture, the court
finds that dismissal is warranted.
court notes that while all of the court's orders and
notices have thus far been returned to the court as
undeliverable with an insufficient address, it is
plaintiff's duty to keep the court informed of his
current address, and service of the court's orders at the
address on record was effective absent the filing of a notice
of change of address. In relevant part, Local Rule 182(f)
provides: “Each appearing attorney and pro se party is
under a continuing duty to notify the Clerk and all other
parties of any change of address or telephone number of the
attorney or the pro se party. Absent such notice, service of
documents at the prior address of the attorney or pro se
party shall be fully effective.”
to Federal Rule of Civil Procedure 41(b), a district court
may dismiss an action for failure to prosecute, failure to
comply with the Federal Rules of Civil Procedure, failure to
comply with the court's local rules, or failure to comply
with the court's orders. See, e.g., 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) (recognizing 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);
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”); Pagtalunan
v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002)
(affirming district court's dismissal of case for failure
to prosecute when habeas petitioner failed to file a first
amended petition). This court's Local Rules are in
accord. See E.D. Cal. L.R. 110 (“Failure 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.”); E.D. Cal.
L.R. 183(a) (providing that a pro se party's failure to
comply with the Federal Rules of Civil Procedure, the
court's Local Rules, and other applicable law may
support, among other things, dismissal of that party's
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.
Id. at 1260-61; accord Pagtalunan, 291 F.3d
at 642-43; Ghazali v. Moran, 46 F.3d 52, 53 (9th
Cir. 1995). 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).
the first two Ferdik factors support dismissal.
Plaintiff has not responded to the court's multiple
orders in this action, has not otherwise participated in this
case since filing his original complaint, and has not
provided the court with an updated address as required by the
Local Rules. Thus, it appears that the court is devoting
scarce judicial resources to this litigation despite
plaintiff's apparent intent to abandon it.
third Ferdik factor, prejudice to defendants, also
favors dismissal. At the very least, defendants have been
named in a civil action and have had progress towards
resolution of the case delayed by plaintiff's failure to
comply with the court's orders and the Local Rules.
fifth Ferdik factor, availability of less drastic
alternatives, also favors dismissal, because the court has
already attempted to provide plaintiff with clear notice of
the steps he needs to take to move the case forward, i.e., by
filing an amended complaint and showing cause as to why this
action should not be dismissed. However, given that all of
the court's orders and notices have thus far been
returned to the court as undeliverable, it appears that such
further steps would be an exercise in futility.
court also recognizes the importance of giving due weight to
the fourth factor, which addresses the public policy favoring
disposition of cases on the merits. However, for the reasons
set forth above, factors one, two, three, and five support a
recommendation of dismissal of this action, and factor four
does not materially counsel otherwise. Dismissal is proper
“where at least four factors support dismissal or where
at least three factors ‘strongly' support
dismissal.” Hernandez v. City of El Monte, 138
F.3d 393, 399 (9th Cir. 1998) (citations and quotation marks
omitted). Under the circumstances of this case, the other
relevant factors outweigh the general public policy favoring
disposition of actions on their merits. See Ferdik,
963 F.2d at 1263. If anything, a disposition on the merits
has been hindered by plaintiff's own failure to comply
with the court's order and the Local Rules.
in light of plaintiff's pro se status, and because the
circumstances suggest that plaintiff may not have received
notice of the court's orders due to his failure to comply
with the Local Rules, the ...