United States District Court, E.D. California
CHRISTIAN J. FRAZIER, et al., Plaintiffs,
CITY OF RANCHO CORDOVA, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
these findings and recommendations, the undersigned
recommends that plaintiffs’ case be dismissed with
prejudice. Plaintiffs repeatedly failed to comply with the
court’s orders directing plaintiffs to file a status
report, failed to appear at the status (pretrial scheduling)
conference set on June 28, 2016, and have not made an
appearance in this action since their counsel’s motion
to withdraw from representation, which was filed on November
16, 2015, was granted. Furthermore, plaintiffs have failed to
keep the court informed of their current address(es) despite
the fact that the court has specifically notified them of
their continuing duty to do so pursuant to Local Rule 182(f).
Accordingly, for the reasons discussed below, the undersigned
recommends that plaintiffs’ case be dismissed with
prejudice pursuant to Federal Rule of Civil Procedure 41(b).
April 22, 2015, defendant City of Rancho Cordova
(“defendant”) removed this action to this court
from the Sacramento County Superior Court on the basis of
this court’s federal question jurisdiction. (ECF No.
1.) At the time of removal, plaintiffs were both represented
by counsel. On April 29, 2015, defendant filed an
answer. (ECF No. 4.)
counsel filed a motion to withdraw from representation on
November 16, 2015. (ECF No. 11.) In his motion,
plaintiffs’ counsel represented that he sought to
withdraw because he had been unable to get into contact with
plaintiffs, both of whom are allegedly homeless, at any time
in the prior several months, despite having made multiple
attempts to do so and having left voice mail messages at the
phone numbers they provided. (Id.) Plaintiffs’
counsel’s motion was granted by the assigned district
judge on February 1, 2016. (ECF No. 14.)
March 7, 2016, the assigned district judge referred this case
to the undersigned for all purposes, exclusive of the
pretrial conference and trial, pursuant to Local Rule
302(c)(21) in light of the fact that all plaintiffs were now
proceeding in this action in propria persona. (ECF
No. 17.) Accordingly, on April 1, 2016, the undersigned
issued an order setting this case for a status (pretrial
scheduling) conference on May 12, 2016, and directed the
parties to meet and confer and file a joint status report
addressing certain topics no later than 14 days prior to the
scheduled conference date. (ECF No. 18.) Despite this
order, none of the parties timely filed a status report.
Accordingly, the undersigned issued an order to show cause
(“OSC”) on May 4, 2016, directing the parties to
show cause in writing why they should not be sanctioned for
their failures to timely file a status report. (ECF No. 19.)
The undersigned also directed plaintiffs to provide the court
with their updated address(es) in compliance with Local Rule
182(f). (Id.) Finally, the undersigned
continued the status (pretrial scheduling) conference to June
30, 2016, and directed the parties to file a status report no
later than 14 days prior to the conference date.
filed its response to the OSC and a status report on May 9,
2016. (ECF No. 9.) In its response, defendant represented
that it had been unable to contact plaintiffs to meet and
confer regarding the preparation of a joint status report and
did not have any updated contact information for plaintiffs.
(Id.) In light of this filing, the undersigned
discharged the OSC as to defendant, but not plaintiffs. (ECF
status (pretrial scheduling) conference was held in this
matter on June 30, 2016. (ECF No. 24.) Attorney Carl
Fessenden appeared telephonically on behalf of defendant.
(Id.) However, neither plaintiff made an appearance.
(Id.) To date, neither plaintiff has responded to
the court’s OSC, despite being warned that sanctions
would issue for failing to respond, or has otherwise made an
appearance in this action since plaintiffs’ counsel
withdrew from representation.
must weigh five factors in determining whether to dismiss a
case for failure to prosecute, failure to comply with a court
order, or failure to comply with a district court’s
local rules. See, e.g., Ferdik v.
Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992).
Specifically, the court must consider:
(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 alternatives.
Id. at 1260-61; accord Pagtalunan v.
Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002);
Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995).
The Ninth Circuit Court of Appeals has stated that
“[t]hese factors are not a series of conditions
precedent before the judge can do anything, but a way for a
district judge to think about what to do.” In re
Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d
1217, 1226 (9th Cir. 2006).
District Local Rule 110 provides that “[f]ailure of
counsel or of a party to comply with these Rules or with 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.” Moreover,
Eastern District Local Rule 183(a) provides, in part:
Any individual representing himself or herself without an
attorney is bound by the Federal Rules of Civil or Criminal
Procedure, these Rules, and all other applicable law. All
obligations placed on “counsel” by these Rules
apply to individuals appearing in propria persona. Failure to
comply therewith may be ground for ...