-KJN (PS) Villasenor v. City of Fairfield, No. 2:2009cv03182 - Document 41 (E.D. Cal. 2011)
Court Description: ORDER and FINDINGS & RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 3/30/2011 ORDERING that the hearing on the defendant's 36 Motion To Dismiss, Or, In The Alternative, Motion To Compel Disclosures And Discovery Responses And An Appearance At Deposition; and 38 Request For Sanctions, presently scheduled for April 14, 2011, is VACATED. It is FURTHER RECOMMENDED that Plaintiff's case be dismissed with prejudice as to all defendants pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Clerk of Court close this case and vacate all future dates in this case. Objections due within 14 days after being served with these findings and recommendations. (Duong, D)
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-KJN (PS) Villasenor v. City of Fairfield Doc. 41 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HUGO VILLASENOR, 12 Plaintiff, 13 14 15 Case No. 2:09-cv-03182-JAM-KJN PS vs. FAIRFIELD POLICE DEPARTMENT, CITY OF FAIRFIELD, and DOES 1 to 100, inclusive, 16 Defendants. 17 ORDER and FINDINGS & RECOMMENDATIONS / On February 1, 2011, defendant City of Fairfield1 filed a motion entitled “Motion 18 19 To Dismiss, Or, In The Alternative, Motion To Compel Disclosures And Discovery Responses 20 And An Appearance At Deposition; And Request For Sanctions” (the “Motion”.) (Motion, Dkt. 21 Nos. 36, 38.) The Motion sought to dismiss plaintiff’s complaint pursuant to Federal Rule of 22 Civil Procedure 41(b) for failure to prosecute, or, in the alternative, to compel plaintiff’s 23 discovery responses, disclosures, and appearance at deposition pursuant to Federal Rule of Civil 24 25 26 1 Defendant City of Fairfield has indicated that it was incorrectly sued as Fairfield Police Department. Defendant City of Fairfield has filed the pending motion and is hereinafter referred to as the moving “defendant.” 1 Dockets.Justia.com 1 Procedure 37 and Eastern District Local Rule 251(e).2 (Motion, Dkt. No. 36.) Plaintiff has filed 2 no written opposition, statement of non-opposition, or other response to the pending motion 3 despite being given multiple opportunities to do so and despite clear warnings from the court that 4 such failure would lead to the involuntary dismissal of his lawsuit. For the reasons that follow, 5 the undersigned recommends that plaintiff’s action be dismissed with prejudice pursuant to 6 Federal Rule of Civil Procedure 41(b). 7 I. BACKGROUND 8 9 Defendant noticed its Motion for a hearing to take place before the undersigned on March 17, 2011. Pursuant to this court’s Local Rules, plaintiff was obligated to file and serve a 10 written opposition or statement of non-opposition to the pending motion at least fourteen days 11 prior to the hearing date, or by March 3, 2011. See E.D. Local Rule 230(c).3 Plaintiff filed 12 neither a written opposition nor a statement of non-opposition by that date. 13 On March 8, 2011, and in response to plaintiff’s failure to file a response to the 14 Motion, the undersigned entered an order (the “Order”) that: (1) continued the hearing on the 15 Moving Defendants’ motion to dismiss until April 14, 2011, to give plaintiff one more 16 opportunity to file an opposition to defendant’s pending motion, and (2) required plaintiff to file 17 a written opposition or statement of non-opposition to the pending motion to dismiss on or 18 before March 17, 2011. (Order, March 8, 2011, Dkt. No. 39.) The Order also expressly stated 19 20 2 This action proceeds before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 21 3 Eastern District Local Rule 230(c) provides: 22 23 24 25 26 (c) Opposition and Non-Opposition. Opposition, if any, to the granting of the motion shall be in writing and shall be filed and served not less than fourteen (14) days preceding the noticed (or continued) hearing date. A responding party who has no opposition to the granting of the motion shall serve and file a statement to that effect, specifically designating the motion in question. No party will be entitled to be heard in opposition to a motion at oral arguments if opposition to the motion has not been timely filed by that party. . . . 2 1 that plaintiff’s failure to file a written opposition by that date would be deemed a statement of 2 non-opposition to the pending motion, consent to the granting of the motion to dismiss, and 3 would constitute an additional ground for the imposition of appropriate sanctions, including a 4 recommendation that plaintiff’s case be involuntarily dismissed pursuant to Federal Rule of Civil 5 Procedure 41(b). (Id. at 4.) 6 That Order also stated, in part: 7 Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court.” Moreover, Eastern District Local Rule 183(a) provides, in part: 8 9 10 11 12 13 Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. All obligations placed on “counsel” by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal . . . or any other sanction appropriate under these Rules. 14 15 16 17 18 19 20 21 22 23 24 25 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of procedure that govern other litigants.”). Case law is in accord that a district court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground for dismissal.”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court.”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam) (stating that district courts have inherent power to control their dockets and may impose sanctions including dismissal). 26 3 1 (Id. at 2-3 (emphasis in original, footnote omitted).)4 2 Later in that Order, the court again warned plaintiff that: “Plaintiff’s failure to file 3 a written opposition by this date will be deemed a statement of non-opposition to the pending 4 motion and consent to the granting of the motion to dismiss, and shall constitute an additional 5 ground for the imposition of appropriate sanctions, including a recommendation that plaintiff’s 6 case be involuntarily dismissed pursuant to Federal Rule of Civil Procedure 41(b).” (Id. at 4.) 7 Thus, the court gave plaintiff very clear warnings that his case would be dismissed for failure to 8 prosecute his action, as well as his failure to comply with the Federal Rules of Civil Procedure, 9 the court’s orders, or the court’s Local Rules. 10 The court’s docket reveals that plaintiff has again failed to file a written 11 opposition or statement of non-opposition to the Motion despite the extended March 17, 2011, 12 deadline set in the Order. Despite the clear directions within the Order, plaintiff filed no written 13 opposition, no statement of non-opposition, nor any other document. Plaintiff’s repeated failure 14 to file an opposition to the Motion is grounds for dismissal of his suit. 15 II. DISCUSSION 16 Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an 17 action for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, 18 failure to comply with the court’s local rules, or failure to comply with the court’s orders.5 See, 19 e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act sua 20 sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. 21 22 23 24 25 26 4 The order also included the following footnote, which is omitted in the above-quoted text: “The Ninth Circuit Court of Appeals had held that under certain circumstances a district court does not abuse its discretion by dismissing a plaintiff’s case pursuant to Federal Rule of Civil Procedure 41(b) for failing to file an opposition to a motion to dismiss. See, e.g., Trice v. Clark County Sch. Dist., 376 Fed. Appx. 789, 790 (9th Cir. 2010).” (Order, at 3 n.4.) 5 Rule 41(b) provides, in part: “(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). 4 1 Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action 2 pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 3 or comply with the rules of civil procedure or the court’s orders); Ferdik v. Bonzelet, 963 F.2d 4 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal Rule of Civil Procedure 41(b), the district court 5 may dismiss an action for failure to comply with any order of the court.”); Pagtalunan v. Galaza, 6 291 F.3d 639, 642-43 (9th Cir. 2002) (affirming district court’s dismissal of case for failure to 7 prosecute when habeas petitioner failed to file a first amended petition). This court’s Local 8 Rules are in accord. See E.D. Local Rule 110 (“Failure of counsel or of a party to comply with 9 these Rules or with any order of the Court may be grounds for imposition by the Court of any and 10 all sanctions authorized by statute or Rule or within the inherent power of the Court.”); E.D. 11 Local Rule 183(a) (providing that a pro se party’s failure to comply with the Federal Rules of 12 Civil Procedure, the court’s Local Rules, and other applicable law may support, among other 13 things, dismissal of that party’s action). 14 A court must weigh five factors in determining whether to dismiss a case for 15 failure to prosecute, failure to comply with a court order, or failure to comply with a district 16 court’s local rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider: 17 18 19 (1) the public’s interest in expeditious resolution of 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. 20 Id. at 1260-61; accord Pagtalunan, 291 F.3d at 642-43; Ghazali v. Moran, 46 F.3d 52, 53 (9th 21 Cir. 1995). The Ninth Circuit Court of Appeals has stated that “[t]hese factors are not a series of 22 conditions precedent before the judge can do anything, but a way for a district judge to think 23 about what to do.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 24 (9th Cir. 2006). 25 26 Although involuntary dismissal can be a harsh remedy, the five relevant factors weigh in favor of dismissal of this action. The first two factors strongly support dismissal of this 5 1 action. Plaintiff’s failure to file an opposition or statement of non-opposition to the Motion in 2 the first instance, and his failure to do so a second time despite clear warnings of the 3 consequences for such failures strongly suggests that plaintiff has abandoned this action or is not 4 interested in seriously prosecuting it. See, e.g., Yourish v. Cal. Amplifier, 191 F.3d 983, 990 5 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always favors 6 dismissal.”). Moreover, although plaintiff had notice of the continued hearing date and his 7 potentially final opportunity to file a response to the Motion on or before March 17, 2011, 8 plaintiff took no action. Any further time spent by the court on this case, which plaintiff has 9 demonstrated a lack of any serious intention to pursue, will consume scarce judicial resources 10 and take away from other active cases. See Ferdik, 963 F.2d at 1261 (recognizing that district 11 courts have inherent power to manage their dockets without being subject to noncompliant 12 litigants). 13 In addition, the third factor, which considers prejudice to a defendant as a result of 14 plaintiff’s failure to timely oppose its motion to dismiss, should be given some weight. See 15 Ferdik, 963 F.2d at 1262. A motion to dismiss is an aid to simplifying the issues and dismissing 16 improper claims or parties before discovery ensues. Plaintiff’s failure to oppose the Motion after 17 being given two opportunities to do so, and his failure to communicate with the court or explain 18 his non-participation in this litigation, raises the real possibility that the defendants in this action 19 may be forced to unnecessarily engage in further litigation against claims that plaintiff does not 20 appear to value enough to pursue in a serious manner. Indeed, the moving defendant has been 21 diligently pursuing its motion to dismiss, and plaintiff stalled this matter and prevented the 22 efficient resolution of his lawsuit. Moreover, unreasonable delay is presumed to be prejudicial. 23 See, e.g., In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d at 1227. 24 The fifth factor, which considers the availability of less drastic measures, also 25 supports dismissal of this action. As noted above, the court has pursued remedies that are less 26 drastic than a recommendation of dismissal. See Malone v. U.S. Postal Serv., 833 F.2d 128, 132 6 1 (9th Cir. 1987) (“[E]xplicit discussion of alternatives is unnecessary if the district court actually 2 tries alternatives before employing the ultimate sanction of dismissal.”). The court excused 3 plaintiff’s initial failure to oppose the Motion, granted plaintiff substantial additional time to file 4 an opposition or statement of non-opposition, and continued the hearing on the motion to 5 dismiss. Moreover, the court advised plaintiff of the requirement of opposing a motion to 6 dismiss and informed him of the requirements of the Local Rules. Furthermore, the court 7 advised plaintiff that he was required to comply with the court’s Local Rules and the Federal 8 Rules of Civil Procedure even though he is proceeding without counsel. It also warned plaintiff 9 in clear terms that failure to comply with the court’s orders would result in a recommendation of 10 dismissal. Warning a plaintiff that failure to take steps towards resolution of his or her action on 11 the merits will result in dismissal satisfies the requirement that the court consider the alternatives. 12 See, e.g., Ferdik, 963 F.2d at 1262 (“[O]ur decisions also suggest that a district court’s warning 13 to a party that his failure to obey the court’s order will result in dismissal can satisfy the 14 ‘consideration of alternatives’ requirement.”) (citing Malone, 833 F.2d at 132-33). At this 15 juncture, the court finds no suitable alternative to a recommendation for dismissal of this action. 16 The court also recognizes the importance of giving due weight to the fourth factor, 17 which addresses the public policy favoring disposition of cases on the merits. However, for the 18 reasons set forth above, factors one, two, three, and five strongly support a recommendation for 19 dismissal of this action, and factor four does not materially counsel otherwise. Dismissal is 20 proper “where at least four factors support dismissal or where at least three factors ‘strongly’ 21 support dismissal.” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations 22 and quotation marks omitted). Under the circumstances of this case, the other relevant factors 23 outweigh the general public policy favoring disposition of actions on their merits. See Ferdik, 24 963 F.2d at 1263. 25 In light of the foregoing, IT IS HEREBY ORDERED that: 26 1. The hearing on the defendant’s Motion To Dismiss, Or, In The 7 1 Alternative, Motion To Compel Disclosures And Discovery Responses And An Appearance At 2 Deposition; And Request For Sanctions” (Motion, Dkt. Nos. 36, 38), presently scheduled for 3 April 14, 2011, is vacated. 4 It is FURTHER RECOMMENDED that: 5 1. 6 Plaintiff’s case be dismissed with prejudice as to all defendants pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. 7 2. 8 These findings and recommendations are submitted to the United States District 9 The Clerk of Court close this case and vacate all future dates in this case. Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 10 days after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Id.; see also E.D. Local Rule 304(b). 12 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 13 Recommendations.” Any response to the objections shall be filed with the court and served on 14 all parties within seven days after service of the objections. E.D. Local Rule 304(d). Failure to 15 file objections within the specified time may waive the right to appeal the District Court’s order. 16 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 17 (9th Cir. 1991). 18 19 IT IS SO ORDERED AND RECOMMENDED. DATED: March 29, 2011 20 21 22 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 23 24 25 26 8
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