United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS THE ACTION DUE
TO PLAINTIFF'S FAILURE TO COMPLY WITH THE COURT'S
ORDERS AND TO PROSECUTE THIS ACTION
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
August 12, 2019, the plaintiff initiated this action related
to alleged violations of the Americans with Disabilities Act.
(Doc. 1) The Court issued summonses on August 13, 2019 (Doc.
3) and its order setting the mandatory scheduling conference
to occur on November 1, 2019 (Doc. 4) and after the plaintiff
filed a First Amended Complaint on September 23, 2019 (Doc.
6), the Court again issued a summons to the newly named
defendant (Doc. 7). In its order setting the mandatory
scheduling conference, the Court advised counsel:
The Court is unable to conduct a scheduling conference until
defendants have been served with the summons and complaint.
Accordingly, plaintiff(s) shall diligently pursue service of
summons and complaint and dismiss those defendants against
whom plaintiff(s) will not pursue claims. Plaintiff(s) shall
promptly file proofs of service of the summons and complaint
so the Court has a record of service. Counsel are referred to
F.R.Civ.P., Rule 4 regarding the requirement of timely
service of the complaint. Failure to timely serve summons and
complaint may result in the imposition of sanctions,
including the dismissal of unserved defendants.
(Doc. 4 at 1) Despite this, the plaintiff has not filed a
proof of service of the summons and complaint as to Easiness
LP and this defendant has not appeared in the action. On
October 30, 2019, the Court ordered the plaintiff to show
cause why sanctions should not be imposed for his failure to
comply with the Court's order and to prosecute this
action. (Doc. 9) The plaintiff has failed to respond.
Local Rules, corresponding with Fed.R.Civ.P. 11, provide:
“Failure of counsel or of a party to comply with . . .
any order of the Court may be grounds for the imposition by
the Court of any and all sanctions . . . within the inherent
power of the Court.” Local Rule 110. “District
courts have inherent power to control their dockets, ”
and in exercising that power, a court may impose sanctions
including dismissal of an action. Thompson v. Housing
Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986).
A court may dismiss an action with prejudice, based on a
party's failure to prosecute an action or failure to obey
a court order, or failure to comply with local rules. See,
e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th
Cir. 1992) (dismissal for failure to comply with an order);
Malone v. U.S. Postal Service, 833 F.2d 128, 130
(9th Cir. 1987) (dismissal for failure to comply with a court
order); Henderson v. Duncan, 779 F.2d 1421, 1424
(9th Cir. 1986) (dismissal for failure to prosecute and to
comply with local rules).
determine whether to dismiss an action for failure to
prosecute and failure to obey a Court order, the Court must
consider several factors, including: “(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.”
Henderson, 779 F.2d at 1423-24; see also
Ferdik, 963 F.2d at 1260-61; Thomspon, 782
F.2d at 831.
public's interest in expeditiously resolving this
litigation and the Court's interest in managing the
docket weigh in favor of dismissal. See Yourish v. Cal.
Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“The
public's interest in expeditious resolution of litigation
always favors dismissal”); Ferdik, 963 F.2d at
1261 (recognizing that district courts have inherent interest
in managing their dockets without being subject to
noncompliant litigants). This Court cannot, and will not
hold, this case in abeyance based upon the plaintiff's
failure to comply with the Court's orders and failure to
take action to continue prosecution in a timely manner. See
Morris v. Morgan Stanley & Co., 942 F.2d 648,
652 (9th Cir. 1991) (a plaintiff has the burden “to
move toward . . . disposition at a reasonable pace, and to
refrain from dilatory and evasive tactics”).
Accordingly, these factors weigh in favor of dismissal of the
determine whether the defendants suffer prejudice, the Court
must “examine whether the plaintiff's actions
impair the . . . ability to go to trial or threaten to
interfere with the rightful decision of the case.”
Malone, 833 F.2d at 131 (citing Rubin v. Belo
Broadcasting Corp., 769 F.2d 611, 618 (9th Cir. 1985)).
Significantly, a presumption of prejudice arises when a
plaintiff unreasonably delays the prosecution of an action.
See Anderson v. Air West, 542 F.2d 522, 524 (9th
Cir. 1976). The plaintiff has failed to serve the action or
take any action to prosecution this case, despite being
ordered by the Court to do so. Therefore, this factor weighs
in favor of dismissal.
Court “abuses its discretion if it imposes a sanction
of dismissal without first considering the impact of the
sanction and the adequacy of less drastic sanctions.”
United States v. Nat'l Medical Enterprises,
Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, a
court's warning to a party that the failure to obey could
result in dismissal satisfies the “consideration of
alternatives” requirement. See Malone, 833
F.2d at 133; Ferdik, 963 F.2d at 1262. As the Ninth
Circuit explained, “a plaintiff can hardly be
surprised” by a sanction of dismissal “in
response to willful violation of a pretrial order.”
Malone, 833 F.2d at 133.
Court warned the plaintiff in the scheduling order that
“[f]ailure to comply with this order may result in the
imposition of sanctions.” (Doc. 4 at 6.) Again, in the
order to show cause, the Court stated that “a court may
impose sanctions including dismissal of an action”
based on a party's failure to prosecute an action or
failure to obey a court order, or failure to comply with
local rules. (Doc. 9 at 2.) Importantly, the Court need only
warn a party once that the matter could be dismissed for
failure to comply to satisfy the requirements of Rule 41.
Ferdik, 963 F.2d at 1262; see also Titus v.
Mercedes Benz of North America, 695 F.2d 746, 749 n.6
(3rd Cir. 1982) (identifying a “warning” as an
alternative sanction). Accordingly, the repeated warnings to
the plaintiff satisfied the requirement that the Court
consider lesser sanctions, and this factor weighs in favor of
dismissal of the action. See Ferdik, 963 F.2d at
1262; Henderson, 779 F.2d at 1424; Titus, 695 F.2d
at 749 n.6.
the plaintiff's failure to prosecute the action and
failure to comply with the Court's orders, the policy
favoring disposition of cases on their merits is outweighed
by the factors in favor of dismissal. See Malone,
833 F.2d at 133, n.2 (explaining that although “the
public policy favoring disposition of cases on their merits .
. . weighs against dismissal, it is not sufficient to
outweigh the other four factors”). Therefore, the Court
scheduling conference is VACATED; The Court
RECOMMENDS, 1. That the action be DISMISSED
Clerk of Court be DIRECTED to close this action.
Findings and Recommendation is submitted to the assigned
District Court Judge, pursuant to the provisions of 28 U.S.C.
§ 636 (b)(1)(B) and Rule 304 of the Local Rules of
Practice for the United States District Court, Eastern
District of California. Within ten days after service of the
Findings and Recommendation, Petitioner may file written
objections with the Court. Such a document should be
captioned “Objections to Magistrate Judge's
Findings and Recommendation.” The Court will then
review the Magistrate Judge's ruling pursuant to 28
U.S.C. § 636 (b)(1)(C). Petitioner is advised ...