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United States v. 10.7 Acres of Land More or Less

United States District Court, E.D. California

December 13, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
10.7 ACRES OF LAND MORE OR LESS, SITUATED IN KERN COUNTY, et al., Defendants.

          FINDINGS AND RECOMMENDATION TO ENTER DEFAULT AGAINST DEFENDANT HARRIS TRUST AND SAVINGS BANK

          JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE

         The Government filed a complaint in condemnation, “for 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.” (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 Savings Bank.

         I. Relevant Background

         The 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.

         On 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.

         II. Failure to Respond to the Complaint

         When a 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.

         III. Failure Obey the Court's Orders

         The 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).

         Dispositive 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”).

         III. Discussion and Analysis

         The 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).

         A. Public interest and the Court's docket

         In the 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 ...


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