(PC) Zepeda v. Yates et al, No. 1:2007cv01483 - Document 45 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Case for Failure to Obey a Court Order; Objections, if any, Due in Thirty Days signed by Magistrate Judge Gary S. Austin on 8/12/2011. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 9/19/2011. (Sant Agata, S)
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(PC) Zepeda v. Yates et al Doc. 45 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALFREDO E. ZEPEDA, 12 13 Plaintiff, vs. 14 JAMES A. YATES, et al., 15 Defendants. ) ) ) ) ) ) ) ) ) ) 1:07-cv-01483-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR FAILURE TO OBEY A COURT ORDER (Doc. 41.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 16 17 On March 17, 2011, the Court issued an order dismissing Plaintiff's First Amended Complaint 18 for failure to state a claim, with leave to amend. (Doc. 41.) Plaintiff was granted thirty days in which 19 to file a Second Amended Complaint. Id. Plaintiff requested and was granted a sixty-day extension of 20 time. (Docs. 43, 44.) The sixty-day period has now expired, and Plaintiff has not filed a Second 21 Amended Complaint or otherwise responded to the Court's order. 22 In determining whether to dismiss this action for failure to comply with the directives set forth 23 in its order, “the Court must weigh the following factors: (1) the public’s interest in expeditious 24 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 25 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring 26 disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing 27 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 28 1 Dockets.Justia.com 1 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” id. 2 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the action has 3 been pending for more than three years. Plaintiff's failure to respond to the Court's order may reflect 4 Plaintiff's disinterest in prosecuting this case. In such an instance, the Court cannot continue to expend 5 its scarce resources assisting a litigant who will not help himself by amending his complaint to state a 6 cognizable claim. Thus, both the first and second factors weigh in favor of dismissal. 7 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and of 8 itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the risk 9 that witnesses’ memories will fade and evidence will become stale,” id., and it is Plaintiff's failure to set 10 forth clear claims in the first instance and to respond to the Court's order in the second instance that is 11 causing delay. Therefore, the third factor weighs in favor of dismissal. 12 As for the availability of lesser sanctions, at this stage in the proceedings there is little available 13 to the Court which would constitute a satisfactory lesser sanction while protecting the Court from further 14 unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this action, 15 making monetary sanctions of little use, and given the early stage of these proceedings, the preclusion 16 of evidence or witnesses is not available. However, inasmuch as the dismissal being considered in this 17 case is without prejudice, the Court is stopping short of issuing the harshest possible sanction of 18 dismissal with prejudice. 19 20 Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal. Id. at 643. 21 22 Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed based on Plaintiff's failure to obey the Court’s order of March 17, 2011. 23 These findings and recommendations are submitted to the United States District Judge assigned 24 to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days after being 25 served with these findings and recommendations, Plaintiff may file written objections with the court. 26 Such a document should be captioned "Objections to Magistrate Judge's Findings and 27 /// 28 2 1 Recommendations." Plaintiff is advised that failure to file objections within the specified time may 2 waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 IT IS SO ORDERED. 5 Dated: 6i0kij August 12, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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