Burton v. Zero Waste Solutions, No. 1:2015cv01562 - Document 10 (E.D. Cal. 2016)

Court Description: Findings and Recommendations to Dismiss 5 Action without prejudice for failure to obey a court order and failure to prosecute, signed by Magistrate Judge Michael J. Seng on 4/13/2016. Matter referred to Judge O'Neill. Objections to F&R due by 5/2/2016. (Rosales, O)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LOVELL BURTON, 12 13 14 15 Plaintiff, v. ZERO WASTE SOLUTIONS, Defendant. 16 19 FINDINGS AND RECOMMENDATION TO DISMISS ACTION WITHOUT PREJUDICE FOR FAILURE TO OBEY A COURT ORDER AND FAILURE TO PROSECUTE (ECF No. 9) FOURTEEN-DAY OBJECTION DEADLINE 17 18 CASE NO. 1:15-cv-01562-LJO-MJS Plaintiff is proceeding pro se and in forma pauperis in this employment discrimination and retaliation action filed on October 14, 2015. 20 On February 23, 2016, Plaintiff’s first amended complaint was dismissed for 21 failure to state a claim. (ECF No. 9.) Plaintiff was granted until March 28, 2016, to file a 22 second amended complaint. That deadline has now passed, and Plaintiff has not 23 responded to the Court’s order. 24 Local Rule 110 provides that “failure of counsel or of a party to comply with these 25 Rules or with any order of the Court may be grounds for imposition by the Court of any 26 and all sanctions . . . within the inherent power of the Court.” District courts have the 27 inherent power to control their dockets and “in the exercise of that power, they may 28 1 impose sanctions including, where appropriate, default or dismissal.” Thompson v. 2 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based 3 on a party’s failure to prosecute, failure to obey a court order, or failure to comply with 4 local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for 5 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 6 1992) (dismissal for failure to comply with an order requiring amendment of a complaint); 7 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply 8 with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 9 U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply 10 with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424-25 (9th Cir. 1986) 11 (dismissal for lack of prosecution and failure to comply with local rules). 12 In determining whether to dismiss an action for lack of prosecution, failure to obey 13 a court order, or failure to comply with local rules, the Court must consider several 14 factors: (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s need 15 to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy 16 favoring disposition of cases on their merits, and (5) the availability of less drastic 17 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423. 18 In the instant case, the public’s interest in expeditiously resolving this litigation 19 and the Court’s interest in managing its docket weigh in favor of dismissal. The third 20 factor, risk of prejudice to Defendants, also weighs in favor of dismissal, since a 21 presumption of injury arises from the occurrence of unreasonable delay in prosecuting 22 this action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – 23 public policy favoring disposition of cases on their merits – is greatly outweighed by the 24 factors in favor of dismissal discussed herein. Finally, as for the availability of lesser 25 sanctions, at this stage in the proceedings there is little available which would constitute 26 a satisfactory lesser sanction while preserving scarce Court resources. Plaintiff has not 27 28 2 1 paid the filing fees in this action and likely is unable to pay, making monetary sanctions 2 of little use. 3 4 Based on the foregoing, it is HEREBY RECOMMENDED that the action be dismissed, without prejudice, for failure to obey a court order and failure to prosecute. 5 These Findings and Recommendations are submitted to the United States District 6 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 7 fourteen (14) days after being served with these Findings and Recommendations, any 8 party may file written objections with the Court and serve a copy on all parties. Such a 9 document should be captioned “Objections to Magistrate Judge’s Findings and 10 Recommendations.” Any reply to the objections shall be served and filed within fourteen 11 (14) days after service of the objections. The parties are advised that failure to file 12 objections within the specified time may result in the waiver of rights on appeal. 13 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 14 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 17 IT IS SO ORDERED. Dated: April 13, 2016 /s/ 18 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 3

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