Pacific West Controls, Inc. v. Marshall/Dubas Construction, Inc. et al
Filing
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FINDINGS and RECOMMENDATION Regarding Dismissal of Action referred to Judge Lawrence J. O'Neill, signed by Magistrate Judge Dennis L. Beck on 11/29/2011. Within thirty (30) days after being served with this Findings and Recommendation, Plaintiff may file written objections with the Court. (Gaumnitz, R)
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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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PACIFIC WEST CONTROLS, INC.,
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Plaintiff,
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vs.
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MARSHALL/DUBAS
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CONSTRUCTION, INC., et al.,
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Defendants.
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____________________________________)
1:11cv0549 LJO DLB
FINDINGS AND RECOMMENDATION
REGARDING DISMISSAL OF ACTION
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On April 1, 2011, Plaintiff filed the present action.
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On October 31, 2011, the Court issued an Order to Show Cause why the action should not be
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dismissed for Plaintiff’s failure to timely serve Defendants pursuant to Federal Rule of Civil
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Procedure 4(m). The Court ordered Plaintiff to file a written response within twenty (20) days of
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service of the order. Over twenty (20) days have passed and Plaintiff has not filed a response or
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otherwise communicated with the Court.1
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For the following reasons, the Court recommends that this action be dismissed for Plaintiff’s
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failure to follow the Court’s order.
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The Order to Show Cause was served on Plaintiff’s counsel by notice of electronic filing on October 31, 2011.
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DISCUSSION
Local Rule 11-110 provides that “failure of counsel or of a party to comply with these Local
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Rules or with any order of the Court may be grounds for the imposition by the Court of any and all
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sanctions . . . within the inherent power of the Court.” District courts have the inherent power to
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control their dockets and “[i]n the exercise of that power they may impose sanctions including,
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where appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986).
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A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,
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failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46
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F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963
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F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring
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amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for
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failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address);
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Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to
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comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for
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lack of prosecution and failure to comply with local rules).
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In determining whether to dismiss an action for lack of prosecution, failure to obey a court
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order, or failure to comply with local rules, the court must consider several factors: (1) the public’s
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interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk
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of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and
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(5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at
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1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.
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In the instant case, the Court finds that the public’s interest in expeditiously resolving this
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litigation and the Court’s interest in managing the docket weigh in favor of dismissal, as this case has
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been pending since April 1, 2011, and Plaintiff has not served the Complaint. Plaintiff was also
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afforded an opportunity to explain the delay yet failed to do so. The third factor, risk of prejudice to
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defendants, also weighs in favor of dismissal, since a presumption of injury arises from the
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occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, Inc., 542 F.2d
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522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition of cases on their
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merits -- is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, a
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court’s warning to a party that his failure to obey the court’s order will result in dismissal satisfies
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the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33;
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Henderson, 779 F.2d at 1424. The Court’s October 31, 2011, Order to Show Cause expressly stated:
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“Failure to comply with this Order will result in a recommendation that this action be dismissed.”
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Thus, Plaintiff had adequate warning that dismissal would result from noncompliance with the
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Court’s order.
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RECOMMENDATION
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Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for
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failure to follow a Court order.
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These Findings and Recommendations will be submitted to the Honorable Lawrence J.
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O’Neill, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after being
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served with this Findings and Recommendation, Plaintiff may file written objections with the Court.
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The document should be captioned “Objections to Magistrate Judge's Findings and
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Recommendation.” Plaintiff is advised that failure to file objections within the specified time may
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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
3b142a
November 29, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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