-BAM Caputi v. Fresno County Superior Court, No. 1:2011cv01579 - Document 9 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED for Plaintiff's failure to comply with a court order. re 1 Complaint filed by Imelda Caputi, referred to Judge Ishii, signed by Magistrate Judge Barbara A. McAuliffe on 11/30/2011. Objections to F&R due by 12/19/2011(Kusamura, W)
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-BAM Caputi v. Fresno County Superior Court Doc. 9 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 IMELDA CAPUTI, 13 14 15 16 17 ) ) Plaintiff, ) ) v. ) ) ) FRESNO COUNTY SUPERIOR COURT, ) ) Defendant. ) ____________________________________) CASE No.: 1:11-cv-01579-AWI-BAM FINDINGS AND RECOMMENDATION REGARDING PLAINTIFF’S FAILURE TO FOLLOW A COURT ORDER 18 19 Plaintiff Imelda Caputi (“Plaintiff”), proceeding pro se and in forma pauperis, has alleged 20 claims against Defendant Fresno County Superior Court (“Defendant”), claiming wrongful 21 termination, age discrimination and Title VII violations. On October 18, 2011, the Court dismissed 22 Plaintiff’s claims for failure to state a claim for which relief could be granted. (Doc. 6.) The Court 23 granted Plaintiff 30 days to file an amended complaint. Id. The deadline for filing the amended 24 complaint was November 17, 2011. To date, Plaintiff has not complied with the Court’s order. 25 26 DISCUSSION Local Rule 110 provides that a “[f]ailure of counsel or of a party to comply with these Rules 27 or with any order of the Court may be grounds for the imposition by the Court of any and all 28 sanctions . . . within the inherent power of the Court.@ District courts have the inherent power to 1 Dockets.Justia.com 1 control their dockets and Ain the exercise of that power, they may impose sanctions including, where 2 appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 3 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an 4 action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. 5 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. 6 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order 7 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 8 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprized of 9 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to 10 comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for 11 lack of prosecution and failure to comply with local rules). In determining whether to dismiss an 12 action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, the 13 court must consider several factors: (1) the public’s interest in expeditious resolution of litigation; 14 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 15 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 16 alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at 130; 17 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24. 18 In the instant case, the Court finds that the public’s interest in expeditiously resolving this 19 litigation and the Court’s interest in managing the docket weigh in favor of dismissal because there is 20 no indication that the Plaintiff intends to prosecute this action. The third factor, risk of prejudice to 21 defendants, also weighs in favor of dismissal because a presumption of injury arises from any 22 unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 23 1976). The fourth factor, public policy favoring disposition of cases on their merits, is greatly 24 outweighed by the factors in favor of dismissal. Finally, a court’s warning to a party that his failure 25 to obey the court’s order will result in dismissal satisfies the “consideration of alternatives” 26 requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The 27 Court’s order requiring Plaintiff to file an amended complaint was clear that dismissal would result 28 from non-compliance with the Court's order. (Doc. 6, 8: 8-10) (“If Plaintiff fails to file an amended 2 1 complaint within thirty (30) days from the date of service of this order, this action will be dismissed 2 with prejudice for failure to state a claim.”) (emphasis in original.) 3 RECOMMENDATION 4 Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for 5 6 Plaintiff’s failure to comply with a court order. This Findings and Recommendation is submitted to the Honorable Anthony W. Ishii, United 7 States District Court Judge, pursuant to the provisions of 28 U.S.C. Section 636 (b)(1)(B). Within 8 fifteen (15) days after being served with a copy, Plaintiff may file written objections with the Court. 9 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 10 Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 11 § 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified time may waive 12 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 IT IS SO ORDERED. Dated: 10c20k November 30, 2011 /s/ Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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