United States District Court, E.D. California
MICHALLA C. ALFARO BRITTANY, Plaintiff,
DONNA S. ROANASIOS, Defendant.
FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
proceeding pro se, filed a complaint against Defendant
alleging a violation of “sponership [sic] civil rights
act other product liability.” (See ECF No. 1.)
Plaintiff requested leave to proceed in forma pauperis.
(See ECF No. 2) The Court granted Plaintiff's
IFP request, and dismissed the complaint with leave to amend
for lack of subject matter jurisdiction. (ECF No. 3.)
Plaintiff was given 21 days to amend or file a statement of
non-opposition, and was warned that a failure to do so by the
required deadline “may result in the imposition of
sanctions, including potential dismissal of the action with
prejudice pursuant to Federal Rule of Civil Procedure
41(b).” More than 21 days have passed without a
response from Plaintiff.
District Local Rule 183(a) provides, in part:
Any individual representing himself  without an attorney is
bound by the Federal Rules of Civil or Criminal Procedure,
these Rules, and all other applicable law. All obligations
placed on “counsel” by these Rules apply to
individuals appearing in propria persona. Failure to comply
therewith may be ground for dismissal, judgment by default,
or any other sanction appropriate under these Rules.
See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.
1987) (“Pro se litigants must follow the same rules of
procedure that govern other litigants”) (overruled on
other grounds). A district court may impose sanctions,
including involuntary dismissal of a plaintiff's case
pursuant to Federal Rule of Civil Procedure 41(b), where that
plaintiff fails to prosecute his or her case or fails to
comply with the court's orders, the Federal Rules of
Civil Procedure, or the court's local rules. See
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) (sua sponte dismissal under
Rule 41(b) approved plaintiff's failure to prosecute or
comply with the rules of civil procedure or the court's
orders); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.
1995) (per curiam) (“Failure to follow a district
court's local rules is a proper ground for
dismissal.”); (“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.”);
Thompson v. Housing Auth. of City of L.A., 782 F.2d
829, 831 (9th Cir. 1986) (per curiam) (stating that district
courts have inherent power to control their dockets and may
impose sanctions including dismissal or default).
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 Ferdik v. Bonzelet, 963 F.2d 1258, 1260
(9th Cir. 1992). These are:
(1) the public's interest in expeditious resolution of
(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
(5) the availability of less drastic alternatives.
Id. at 1260-61; accord Pagtalunan v.
Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002).
the first two factors weigh in favor of dismissal, because
this case has already been delayed by Plaintiff's failure
to take the steps necessary to move this case forward. The
third factor also favors dismissal, because, at a minimum,
Defendants have been deprived of an opportunity to be
promptly notified of the lawsuit and prepare their defense.
With the passage of time, memories' fade and evidence
becomes stale. The fifth factor also favors dismissal because
the Court has already attempted less drastic alternatives.
Specifically, after granting Plaintiff leave to proceed
without paying the filing fee, the Court informed Plaintiff
of the Complaint's deficiencies and granted her leave to
amend. However, Plaintiff has been incommunicado since filing
the complaint, leaving the court with little alternative but
to recommend dismissal. Given her request to proceed IFP, it
is unlikely that monetary sanctions could be effective.
the fourth factor, the public policy favoring disposition on
their merits, that factor is outweighed by the other
Ferdik factors. Indeed, it is Plaintiffs own failure
to prosecute the case and comply with the rules that
precludes a resolution on the merits. Therefore, after