United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT
PLAINTIFF'S CLAIMS BE DISMISSED FOR FAILURE TO STATE A
CLAIM, FAILURE TO PROSECUTE, AND FAILURE TO COMPLY WITH A
COURT ORDER (ECF NO. 4)
Angelica Martinez (“Plaintiff”) proceeds pro
se and in forma pauperis in this action against
Defendant FP Store, Inc. (“Defendant”), alleging
a cause of action under the Fair Labor Standards Act of 1938,
29 U.S.C. § 216(b) (“FLSA”).
September 24, 2019, the Court screened Plaintiff's
Complaint pursuant to 28 U.S.C. § 1915(e)(2) and found
that it failed to state any cognizable claims. (ECF No. 4.)
The Court gave Plaintiff options as to how to proceed: (1)
file an amended complaint; or (2) notify the Court that she
wishes to stand on her complaint, subject to the Court
issuing findings and recommendations to the district judge
consistent with the screening order. The Court also warned
Plaintiff that if she failed to take any action in response
to the screening order, the Court would issue findings and
recommendations to the assigned district judge recommending
that Plaintiff's case be dismissed for failure to state a
claim, failure to prosecute, and failure to comply with a
than thirty days have elapsed since the Court entered its
screening order, and Plaintiff has failed to file an amended
complaint or to notify that Court that she wishes to stand on
for the reasons set forth in the screening order (ECF No.
4.), the Court will recommend that Plaintiff's case be
dismissed for failure to state a claim.
the Court will recommend that Plaintiff's case be
dismissed without prejudice for failure to prosecute and for
failure to comply with a court order.
determining whether to dismiss a[n] [action] for failure to
prosecute or failure to comply with a court order, the Court
must weigh the following 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 defendants/respondents; (4) the availability of
less drastic alternatives; and (5) the public policy favoring
disposition of cases on their merits.” Pagtalunan
v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing
Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
public's interest in expeditious resolution of litigation
always favors dismissal.'” Id. (quoting
Yourish v. California Amplifier, 191 F.3d 983, 990
(9th Cir. 1999)). Accordingly, this factor weighs in favor of
the Court's need to manage its docket, “[t]he trial
judge is in the best position to determine whether the delay
in a particular case interferes with docket management and
the public interest…. It is incumbent upon the Court
to manage its docket without being subject to routine
noncompliance of litigants....” Pagtalunan,
291 at 639. As described above, Plaintiff has failed to
respond to a court order and has generally failed to
litigate. This failure is delaying this case and interfering
with docket management. Therefore, the second factor weighs
in favor of dismissal.
to the risk of prejudice, “pendency of a lawsuit is not
sufficiently prejudicial in and of itself to warrant
dismissal.” Id. at 642 (citing
Yourish, 191 F.3d at 991). However, “delay
inherently increases the risk that witnesses' memories
will fade and evidence will become stale, ”
id. at 643, and it is Plaintiffs failure to respond
to a court order that is causing delay. Therefore, the third
factor weighs in favor of dismissal.
the availability of lesser sanctions, at this stage in the
proceedings there is little available to the Court which
would constitute a satisfactory lesser sanction while
protecting the Court from further unnecessary expenditure of
its scarce resources. Considering Plaintiffs in forma
pauperis status, monetary sanctions are of little use,
and given the stage of these proceedings, the preclusion of
evidence or witnesses is not available. Additionally, because
the dismissal being considered in this case is without
prejudice, the Court is stopping short of using the harshest
possible sanction of dismissal with prejudice.
because public policy favors disposition on the merits, this
factor weighs against dismissal. Id.
weighing the factors, the Court finds that dismissal without
prejudice is appropriate.
IT IS HEREBY RECOMMENDED that:
Plaintiffs case be dismissed without prejudice for failure to
state a claim, failure to prosecute, and ...