United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL
OF ACTION FOR FAILURE TO COMPLY AND FAILURE TO PROSECUTE (ECF
NOS. 7, 8)
23, 2019, Theresa Brooke (“Plaintiff”) filed this
action alleging violation of the Americans with Disabilities
Act and state law claims. (ECF No. 1.) On August 28, 2019, at
Plaintiff's request, default was entered against Modesto
Finance LP (“Defendant”). (ECF Nos. 5, 6.) On
September 23, 2019, an order issued vacating all dates in the
action and ordering Plaintiff to file a motion for default
judgment within thirty days. (ECF No. 7.) Plaintiff was
advised that the failure to file a motion for default
judgment may result in the imposition of sanctions, up to and
including dismissal of this action. (Id. at 2.).
Plaintiff did not file a motion for default judgment or
otherwise respond to the September 23, 2019 order.
October 29, 2019, an order issued requiring Plaintiff to show
cause why this action should not be dismissed for failure to
prosecute based on Plaintiff's failure to comply with the
September 23, 2019 order. (ECF No. 8.) Plaintiff was advised
that failure to show cause would result in the recommendation
that this action be dismissed for failure to prosecute.
(Id. at 2.) Again, Plaintiff did not comply or
otherwise respond to the October 29, 2019 order.
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 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 lack of
prosecution, the district court is required to consider
several factors: ‘(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.' ” Carey, 856 F.2d at
1440 (quoting Henderson v. Duncan, 779 F.2d 1421,
1423 (9th Cir. 1986)). 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. In re
Phenylpropanolamine (PPA) Products Liability Litigation,
460 F.3d 1217, 1226 (9th Cir. 2006) (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 PPA Products
Liability Litigation, 460 F.3d at 1226. Plaintiff was
ordered to file a motion for default judgment within thirty
days of September 23, 2019 and did not comply or otherwise
respond to the order. Similarly, Plaintiff was ordered to
show cause why this action should not be dismissed for the
failure to prosecute due to the failure to file a motion for
default judgment within ten days of October 29, 2019. Again,
Plaintiff did not comply with or otherwise 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. Here,
Plaintiff has twice failed to respond to the Court's
attempts to move this action forward and has not provided any
excuse for the lack of compliance. 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 orders at
issue. This action cannot simply remain idle on the
Court's docket, unprosecuted. In this ...