United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO ENTER DEFAULT AGAINST
DEFENDANT HARRIS TRUST AND SAVINGS BANK
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
Government filed a complaint in condemnation, âfor the taking
of property in Kern County, California, under the power of
eminent domain through a Declaration of Taking, and for the
determination and award of just compensation to the owners
and parties in interest.â (Doc. 1 at 2) Defendant Harris
Trust and Savings Bank has failed to answer the complaint or
disclaim an interest in the property. As set forth below, the
Court recommends default be entered against Harris Trust and
Government initiated this action by filing a complaint on
September 21, 2018. (Doc. 1) Harris Trust and Savings Bank
was served with the summons and complaint on November 28,
2018. (Doc. 19) However, the defendant failed to file an
answer to the complaint, disclaim any interest in the
property, or otherwise file a responsive pleading.
November 5, 2019, the Court held a scheduling conference with
the parties. (See Doc. 34) During the conference,
counsel for Southern California Edison informed the Court hat
“he had a couple of conversations with the attorney for
Harris Trust and Savings Bank.” (See Doc. 33)
Nevertheless, the defendant has taken no action in the case.
Therefore, the same date, the Court ordered Harris Trust and
Savings Bank to show cause why sanctions should not be
imposed for its failure to respond to the complaint and
failure to comply with the Court's orders, and to respond
no later than November 22, 2019. (Id. at 1) The
Government was directed to serve the order by first class
mail upon the defendant, and file proof of service.
(Id. at 2) Accordingly, Harris Trust and Savings
Bank was served with the order on November 6, 2019. (Doc. 35)
To date, the defendant has neither appeared nor responded to
the Court's orders.
Failure to Respond to the Complaint
defendant fails to file an answer within the time required by
Rule 12(a)(1)(A) of the Federal Rules of Civil Procedure,
entry of default against that defendant is appropriate by the
Clerk of Court.
Failure Obey the Court's Orders
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.” LR 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 impose terminating sanctions for a party's failure to
obey a court order. See, e.g. Ferdik v.
Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)
(terminating sanctions for failure to comply with an order);
Malone v. U.S. Postal Service, 833 F.2d 128, 130
(9th Cir. 1987) (same).
sanctions may be warranted where “discovery violations
threaten to interfere with the rightful decision of the
case.” Conn. Gen. Life Ins. Co. v. New Images of
Beverly Hills, 482 F.3d 1091, 1097 (9th Cir. 2007).
“A terminating sanction, whether default judgment
against a defendant or dismissal of a plaintiff's action,
is very severe, ” and “[o]nly willfulness, bad
faith, and fault justify terminating sanctions.”
Id. at 1096; see also Computer Task Group, Inc.
v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004) (stating
that where “the drastic sanctions of dismissal or
default are imposed, . . . the range of discretion is
narrowed and the losing party's noncompliance must be due
to willfulness, fault, or bad faith”).
Discussion and Analysis
Ninth Circuit has identified five factors that a court must
consider when issuing terminating sanctions: “(1) the
public's interest in the expeditious resolution of
litigation; (2) the court's need to manage its docket;
(3) the risk of prejudice to the [party seeking terminating
sanctions]; (4) the public policy favoring disposition of
cases on their merits; and (5) the availability of less
drastic sanctions.” Henderson v. Duncan, 779
F.2d 1421, 1423 (9th Cir. 186); Toth v. Trans World
Airlines, Inc., 862 F.2d 1381, 1385 (9th Cir. 1988).
Public interest and the Court's docket
case at hand, the 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). Harris
Trust and Savings Bank has failed to appear with counsel, to
answer the complaint, or disclaim an interest in the propery.
This Court cannot, and will not hold, this case in abeyance
for the defendant's failure to comply with the
Court's order and to defend in a timely manner. See
Morris v. Morgan Stanley & Co., 942 F.2d 648, 652
(9th Cir. 1991) (observing parties are obligated “to
move toward… disposition at a reasonable pace, and to
refrain from dilatory and evasive tactics”). In
addition, as Harris ...