United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
Plaintiff
William Harticon is proceeding in this action pro se. This
matter was, therefore, referred to the undersigned in
accordance with Local Rule 302(c)(21) and 28 U.S.C. §
636(b)(1). (ECF No. 29.) On September 12, 2019, defendants
filed a motion to dismiss. (ECF No. 33.) The motion was
noticed for hearing before the undersigned on November 1,
2019. Pursuant to Local Rule 230(c) plaintiff was to file an
opposition or a statement of non-opposition to
defendants' motion “not less than fourteen (14)
days preceding the noticed . . . hearing date.”
Plaintiff, however, failed to file a timely opposition or
statement of non-opposition.
Accordingly,
on October 28, 2019, the court issued an order to show cause,
ordering plaintiff to show cause in writing within fourteen
days as to why this action should not be dismissed for lack
of prosecution, as well as ordering plaintiff to file a
statement or opposition or non-opposition to defendants'
motion on or before November 22, 2019. (ECF No. 34.)
Plaintiff was warned that the failure to timely comply with
that order could result in a recommendation that this case be
dismissed. (Id.) Nonetheless, the time provided
plaintiff has expired and plaintiff has not responded to the
October 28, 2019 order.[1]
ANALYSIS
The
factors to be weighed in determining whether to dismiss a
case for lack of prosecution are as follows: (1) the public
interest in expeditious resolution of litigation; (2) the
court's need to manage its docket; (3) the risk of
prejudice to the defendant; (4) the public policy favoring
disposition on the merits; and (5) the availability of less
drastic sanctions. Hernandez v. City of El Monte,
138 F.3d 393, 398 (9th Cir. 1998); Ferdik v.
Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); Carey
v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal
is a harsh penalty that should be imposed only in extreme
circumstances. Hernandez, 138 F.3d at 398;
Ferdik, 963 F.2d at 1260.
Failure
of a party to comply with the 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.” Local Rule 110. Any
individual representing himself or herself without an
attorney is nonetheless bound by the Federal Rules of Civil
Procedure, the Local Rules, and all applicable law. Local
Rule 183(a). A party's failure to comply with applicable
rules and law may be grounds for dismissal or any other
sanction appropriate under the Local Rules. Id.
Here,
plaintiff has failed to respond to the October 28, 2019
order, and has failed to file a statement of opposition or
non-opposition to defendants' motion to dismiss.
Plaintiff was warned that the failure to file a written
response to that order could result in a recommendation that
this matter be dismissed. In this regard, plaintiff's
lack of prosecution of this case renders the imposition of
monetary sanctions futile. Moreover, the public interest in
expeditious resolution of litigation, the court's need to
manage its docket, and the risk of prejudice to the defendant
all support the imposition of the sanction of dismissal. Only
the public policy favoring disposition on the merits counsels
against dismissal. However, plaintiffs failure to prosecute
the action in any way makes disposition on the merits an
impossibility. The undersigned will therefore recommend that
this action be dismissed due to plaintiffs failure to
prosecute as well as plaintiffs failure to comply with the
court's orders. See Fed.R.Civ.P. 41(b).
Accordingly,
IT IS HEREBY ORDERED that:
1.
Defendants' September 12, 2019 motion to dismiss (ECF No.
33) is denied without prejudice as having been rendered
moot.[2]
2. The
December 6, 2019 hearing of defendants' motion is
vacated. Also, IT IS HEREBY RECOMMENDED that:
1.
Plaintiffs January 22, 2018 complaint (ECF No. 1-1) be
dismissed without prejudice; and
2. This
action be closed.
These
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
days after being served with these findings and
recommendations, any party may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” Any reply to
the objections shall be served and filed within fourteen days
after service of the objections. The parties are advised that
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