-GSA Isupov v. American Relocation Moving Specialist, No. 1:2011cv00780 - Document 5 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss This Action for Plaintiff's Failure to Obey Court Orders signed by Magistrate Judge Gary S. Austin on 6/27/2011. Objections to F&R due within thirty (30) days of service of this recommendation,.(Bradley, A)
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-GSA Isupov v. American Relocation Moving Specialist Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ELENA ISUPOV, 11 12 13 14 15 ) ) Plaintiff, ) ) v. ) ) AMERICAN RELOCATION MOVING ) SPECIALIST, ) ) Defendant. ) _____________________________________ ) 1:11-cv-00780 LJO GSA FINDINGS AND RECOMMENDATIONS TO DISMISS THIS ACTION FOR PLAINTIFF’S FAILURE TO OBEY COURT ORDERS 16 17 18 19 RELEVANT PROCEDURAL BACKGROUND On May 13, 2011, Plaintiff Elena Isupov filed a breach of contract complaint with this 20 Court. (Doc. 1.) That same date, Plaintiff filed an Application to Proceed in District Court 21 Without Prepayment of Fees or Costs. (Doc. 2.) 22 On May 17, 2011, District Judge Lawrence J. O’Neill issued an Order Denying 23 Application to Proceed In Forma Pauperis. Plaintiff was ordered to pay the filing fee of $350.00 24 no later than June 15, 2011, to avoid dismissal of this action. (See Doc. 3.) 25 26 Thereafter, on May 23, 2011, the undersigned issued an Order Dismissing Complaint With Leave to Amend. More particularly, Plaintiff’s complaint was dismissed for a failure to 27 28 1 Dockets.Justia.com 1 state a proper claim. Nevertheless, Plaintiff was granted thirty days’ leave of court to file an 2 amended complaint, in order to cure the deficiencies identified by the Court. (See Doc. 4.) 3 Therefore, an amended complaint was to be filed no later than June 22, 2011.1 4 5 As of today’s date, Plaintiff has failed to file an amended complaint. Additionally, Plaintiff has not paid the filing fee as previously ordered by Judge O’Neill. 6 7 DISCUSSION Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 8 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 9 sanctions . . . within the inherent power of the Court.” District courts have the inherent power to 10 control their dockets and “in the exercise of that power, they may impose sanctions including, 11 where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th 12 Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute 13 an action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. 14 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik 15 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an 16 order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 17 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court 18 apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal 19 for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 20 1986) (dismissal for failure to lack of prosecution and failure to comply with local rules). In 21 determining whether to dismiss an action for lack of prosecution, failure to obey a court order, or 22 failure to comply with local rules, the Court must consider several factors: (1) the public’s 23 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3) the 24 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 25 merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; 26 27 28 1 5/23/11 + 30 days = 6/22/11. 2 1 Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; 2 Ghazali, 46 F.3d at 53. 3 In the instant case, the Court finds that the public’s interest in expeditiously resolving this 4 litigation and the Court’s interest in managing the docket weigh in favor of dismissal, as this case 5 has been pending since May 13, 2011, yet there is no indication that Plaintiff intends to prosecute 6 this action for she has ignored two separate court orders requiring either a response or action on 7 her part. Henderson v. Duncan, 779 F.2d at 1424. The third factor, risk of prejudice, also 8 weighs in favor of dismissal, since a presumption of injury arises from the occurrence of 9 unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 10 1976). The fourth factor - public policy favoring disposition of cases on their merits - is greatly 11 outweighed by the factors in favor of dismissal discussed herein. Thompson, 782 F.2d at 831; 12 Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; 13 Ghazali, 46 F.3d at 53. 14 Finally, a court’s warning to a party that a failure to obey the Court’s order will result in 15 dismissal satisfies the “consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d 16 at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. Here, Plaintiff received two such 17 warnings. First, Judge O’Neill’s May 17, 2011, order expressly provided that a “[f]ailure to 18 comply with this Order will result in the dismissal of this action.” (See Doc. 3 at 2.) Second, the 19 undersigned’s May 23, 2011, order specifically provided as follows: “If Plaintiff fails to file a 20 first amended complaint, the Court will recommend that this action be dismissed for a 21 failure to follow a court order.” (See Doc. 4 at 6, emphasis in original.) Thus, Plaintiff has had 22 adequate warning that dismissal would result from noncompliance with court orders. 23 24 25 RECOMMENDATION Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for Plaintiff’s failure to comply with court orders. 26 27 28 3 1 These findings and recommendations are submitted to the district judge assigned to this 2 action, pursuant to Title 28 of the United States Code section 636(b)(1)(B) and this Court’s Local 3 Rule 304. Within thirty (30) days of service of this recommendation, any party may file written 4 objections to these findings and recommendations with the Court and serve a copy on all parties. 5 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 6 Recommendations.” The district judge will review the magistrate judge’s findings and 7 recommendations pursuant to Title 28 of the United States Code section 636(b)(1)(C). The 8 parties are advised that failure to file objections within the specified time may waive the right to 9 appeal the district judge’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 11 IT IS SO ORDERED. Dated: i70h38 June 27, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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