Land v. Bank of America, No. 1:2016cv01494 - Document 4 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS Regarding Dismissal of this 1 Action for Failure to State a Claim and Failure to Obey a Court Order; Fourteen-Day Deadline signed by Magistrate Judge Barbara A. McAuliffe on 12/2/2016. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 12/19/2016. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARK S. LAND, Plaintiff, 12 13 14 15 16 Case No. 1:16-cv-01494-LJO-BAM v. BANK OF AMERICA, Defendant. FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF THIS ACTION FOR FAILURE TO STATE A CLAIM AND FAILURE TO OBEY A COURT ORDER (Doc. 3) FOURTEEN-DAY DEADLINE 17 18 Plaintiff Frank Silva, proceeding pro se and in forma pauperis, initiated this civil action 19 on October 5, 2016, alleging a violation of the Racketeer Influenced and Corrupt Organizations 20 Act, 18 U.S.C. § 1961 et seq., by Defendant Bank of America. (Doc. 1). 21 On October 18, 2016, the Court issued an order dismissing Plaintiff’s complaint because it 22 failed to comply with Federal Rule of Civil Procedure 8 and failed to state a cognizable claim. 23 Based on Plaintiff’s pro se status, the Court granted Plaintiff leave to amend. Plaintiff was 24 directed to file a first amended complaint within thirty (30) days from service of the order. (Doc. 25 3). More than thirty days have passed and Plaintiff has failed to comply with this Court’s order. 26 DISCUSSION 27 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 28 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 1 1 within the inherent power of the Court.” District courts have the inherent power to control their 2 dockets and “[i]n the exercise of that power, they may impose sanctions including, where 3 appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 4 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 5 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 6 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 7 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 8 amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for 9 failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); 10 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 11 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 12 of prosecution and failure to comply with local rules). In determining whether to dismiss an 13 action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, 14 the court must consider several factors: (1) the public’s interest in expeditious resolution of 15 16 17 18 19 20 21 22 23 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24. In the instant case, the Court finds that the public’s interest in expeditiously resolving this litigation and the Court’s interest in managing the docket weigh in favor of dismissal because there is no indication that Plaintiff intends to prosecute this action. Plaintiff failed to file an amended complaint and did not otherwise contact the Court. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a presumption of injury arises from any unreasonable delay in prosecuting an action. Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th 24 Cir. 1976). The fourth factor, public policy favoring disposition of cases on their merits, is 25 26 27 greatly outweighed by the factors in favor of dismissal. Finally, a court’s warning to a party that his failure to obey the court’s order will result in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 28 2 1 F.2d at 1424. The Court’s order directing Plaintiff to file an amended complaint was clear that if 2 Plaintiff failed to file an amended complaint in compliance with the Court’s order, then the action 3 would be dismissed with prejudice. (Doc. 3 at 5). 4 CONCLUSION AND RECOMMENDATION 5 6 7 8 9 10 Based on the above, IT IS HEREBY RECOMMENDED that this action be DISMISSED, with prejudice, for Plaintiff’s failure to state a claim and failure to obey a court order. These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 11 file written objections with the Court. 12 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 13 objections within the specified time may result in the waiver of the “right to challenge the 14 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 15 The document should be captioned “Objections to (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 17 18 IT IS SO ORDERED. Dated: /s/ Barbara December 2, 2016 19 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 3

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