United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING THIS ACTION
BE DISMISSED FOR PLAINTIFF'S FAILURE TO COMPLY WITH COURT
ORDERS AND FAILURE TO PROSECUTE OBJECTIONS DUE WITHIN
Strojnik, Sr. (“Plaintiff”), proceeding pro se in
this action, filed a complaint against Anita Griffin and Greg
Griffin (collectively “Defendants”) alleging
violations of the Americans With Disabilities Act and
California law. (ECF No. 1.) On November 27, 2018, the
mandatory scheduling conference order issued. (ECF No. 3.) On
January 4, 2019, Defendants, also proceeding pro se, filed an
answer to the complaint. (ECF No. 9.)
February 25, 2019, an order issued requiring the parties to
show cause for the failure to file a joint scheduling
statement as required by the November 27, 2018 scheduling
conference order. (ECF No. 10.) On March 7, 2019, Defendants
filed a response that was stricken from the record for being
unsigned and unresponsive to the order to show cause. (ECF
Nos. 11, 13.) On March 12, 2019, Plaintiff filed a response
to the order to show cause. (ECF No. 12.) On March 13, 2019,
an order issued discharging the order to show cause and
continuing the scheduling conference. (ECF No. 13.) The order
required the parties to meet and confer regarding the joint
statement and Defendants were ordered to respond to
Plaintiff's proposed joint statement. (Id.) On
April 18, 2019, Plaintiff filed a notice of inability to file
a joint statement and a request for entry of default
judgment. (ECF No. 14.) Plaintiff asserted that Defendants
failed to comply with the March 13, 2019 order or contact
Plaintiff and requested that the scheduling conference be
vacated and default be entered against Defendants.
(Id.) The Court declined to do so at the time. The
mandatory scheduling conference was continued to May 17,
2019, and Defendants were ordered to personally appear at the
mandatory scheduling conference. (Id.)
mandatory scheduling conference was held on May 17, 2019.
Plaintiff appeared telephonically. There was no appearance by
Defendants. On May 20, 2019, an order issued requiring
Defendants to show cause why sanctions should not issue for
the failure to appear at the scheduling conference. (ECF No.
18.) Defendants filed a response to the order to show cause
on May 23, 2019. (ECF No. 19.) On May 28, 2019, findings and
recommendations issued recommending striking Defendants'
answer to the complaint as a sanction for their failure to
comply with Court orders and enter default. (ECF No. 20.) On
June 25, 2019, an order was entered adopting the findings and
recommendations, Defendants' answer was stricken from the
record, and default was entered. (ECF Nos. 21, 22.) The June
25, 2019 order required Plaintiff to file a motion for
default judgment within sixty days. (ECF No. 21 at 2.)
did not file a motion for default judgment as ordered. On
August 29, 2019, an order issued requiring Plaintiff to show
cause within ten days why this action should not be dismissed
for failure to comply and failure to prosecute. (ECF No. 23.)
Plaintiff did not respond to the August 29, 2019 order.
of the Federal Rules of Civil Procedure allows a court to
involuntarily dismiss an action if the plaintiff fails to
prosecute the action or fails to comply with a court order.
Fed.R.Civ.P. 41(b). 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 . . . within
the inherent power of the Court.” The Court has the
inherent power to control its docket and may, in the exercise
of that power, impose sanctions where appropriate, including
dismissal of the action. Bautista v. Los Angeles County, 216
F.3d 837, 841 (9th Cir. 2000).
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); 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); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir.
1988) (dismissal for failure to comply with local rule
requiring pro se plaintiffs to keep court apprised of
address); Malone v. United States Postal Serv., 833 F.2d 128,
130 (9th Cir. 1987) (dismissal for failure to comply with
court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th
Cir. 1986) (dismissal for lack of prosecution and failure to
comply with local rules).
determining whether to dismiss an action for failure to
comply with a pretrial order, the Court must weigh “(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.” In re
Phenylpropanolamine (PPA) Products Liability Litigation, 460
F.3d 1217, 1226 (9th Cir. 2006) (internal quotations and
citations omitted). These factors guide a court in deciding
what to do, and are not conditions that must be met in order
for a court to take action. Id. (citation omitted).
instance, the public's interest in expeditious resolution
of the litigation and the Court's need to manage its
docket weigh in favor of dismissal. In re Phenylpropanolamine
(PPA) Products Liability Litigation, 460 F.3d at 1226.
Plaintiff was ordered to file a motion for default judgment
within sixty days of June 25, 2019. Plaintiff has neither
filed a motion for default judgment nor otherwise responded
to the Court's order. Plaintiff was also ordered to show
cause why this action should not be dismissed for his failure
to comply with court orders within ten days of August 29,
2019. Again, Plaintiff failed to respond to the Court's
order. Plaintiff's failure to comply with the orders of
the Court hinders the Court's ability to move this action
towards disposition, and indicates that Plaintiff does not
intend to diligently litigate this action.
it appears that Plaintiff does not intend to litigate this
action diligently there arises a rebuttable presumption of
prejudice to the defendants in this action. In re Eisen, 31
F.3d 1447, 1452-53 (9th Cir. 1994). This risk of prejudice
may be rebutted if Plaintiff offers an excuse for the delay.
In re Eisen, 31 F.3d at 1453. The risk of prejudice to the
defendants also weighs in favor of dismissal.
public policy in favor of deciding cases on their merits is
greatly outweighed by the factors in favor of dismissal. It
is Plaintiff's responsibility to move this action
forward. This action can proceed no further without
Plaintiff's cooperation and compliance with the order at
issue, and the action cannot simply remain idle indefinitely
on the Court's docket, unprosecuted. In this instance,
the fourth factor does not outweigh Plaintiff's failure
to comply with the Court's orders.
a court's warning to a party that their failure to obey
the court's order will result in dismissal satisfies the
“consideration of alternatives” requirement.
Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33;
Henderson, 779 F.2d at 1424. The Court's August 29, 2019
order requiring Plaintiff to show cause specifically advised
Plaintiff that “failure to file a response to this
order will result in the recommendation that this action be
dismissed.” (ECF No. 23 at 2.) Thus, Plaintiff had