(TEMP)(PC) Willyard v. McDaniels, et al., No. 2:2014cv00780 - Document 22 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 3/10/16 ORDERING that the action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). The Clerk be directed to close this case. These findings and recommendations are submitted to the assigned judge, Judge Brennan. Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. (Kastilahn, A)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COREY WILLYARD, 12 Plaintiff, 13 14 No. 2:14-cv-0780-EFB (TEMP) v. FINDINGS AND RECOMMENDATIONS MCDANIELS, et al., 15 Defendants. 16 17 In a December 7, 2015 order, the assigned judge, Judge Brennan, scheduled a settlement 18 19 conference in this case for February 23, 2016, at 9:00 a.m., in Courtroom No. 25 before the 20 undersigned. (ECF No. 18.) The order specifically cautioned that the “failure of any counsel, 21 party or authorized person subject to this order to appear in person may result in the imposition of 22 sanctions.” (Id.) At the February 23, 2016 settlement conference, attorney Gary Brickwood appeared on 23 24 behalf of defendants, along with assistant county counsel Jim Ross. Both of defendants’ 25 representatives traveled over 150 miles from Redding to Sacramento for the settlement 26 conference. However, even though the court trailed the start of the settlement conference by 30 27 minutes, plaintiff, who proceeds without counsel, failed to appear. 28 //// 1 1 Consequently, on February 25, 2016, the court issued an order to show cause. (ECF No. 2 21.) In that order, the court acknowledged that the December 7, 2015 order scheduling the 3 settlement conference was returned to the court as undeliverable. Nevertheless, the court noted 4 that it was also informed that one of the court’s administrators had obtained plaintiff’s new 5 contact information through plaintiff’s probation officer, and was ultimately able to speak to 6 plaintiff and notify him regarding the date and time of the settlement conference. Indeed, that 7 communication apparently prompted plaintiff to file a notice of change of address on February 8 10, 2016. (ECF No. 19.) At the February 23, 2016 settlement conference, defendants’ counsel 9 also advised the court that he had sent an additional notice of the settlement conference to 10 plaintiff’s new address, once the notice of change of address was filed. As such, it appeared that 11 plaintiff was well aware of the settlement conference, but nonetheless failed to appear without 12 providing any notice to defendants’ counsel or the court. Thus, the court directed plaintiff to 13 show cause, within seven (7) days, why he should not be required to pay $250.00 in sanctions 14 based on his failure to appear at the court-ordered settlement conference. The court specifically 15 cautioned plaintiff that failure to respond to the order by the required deadline may result in 16 dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure 41(b). 17 18 Although the applicable deadline has now passed, plaintiff failed to respond to the court’s order to show cause. Therefore, the court recommends dismissal at this juncture. 19 A court must weigh five factors in determining whether to dismiss a case for failure to 20 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 21 rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). Specifically, the court 22 must consider: 23 24 25 (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. 26 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). The Ninth 27 Circuit Court of Appeals has stated that “[t]hese factors are not a series of conditions precedent 28 before the judge can do anything, but a way for a district judge to think about what to do.” In re 2 1 Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). Here, the first two factors strongly weigh in favor of dismissal, because plaintiff’s failure 2 3 to appear at a court-ordered settlement conference and comply with court orders have delayed 4 resolution of the action and impacted an already-congested court docket. The third factor also 5 favors dismissal, because defendants have already been prejudiced, at a minimum, by plaintiff’s 6 failure to appear at a settlement conference to which they traveled over 150 miles. With respect 7 to the fifth factor, the court first attempted lesser sanctions by issuing an order to show cause and 8 cautioning plaintiff that the case may be dismissed if he failed to comply with court orders. 9 However, plaintiff ultimately ignored that order. Finally, as to the fourth factor addressing the 10 policy favoring disposition of cases on their merits, it is plaintiff’s own actions that preclude a 11 resolution on the merits here. In any event, the fourth factor is clearly outweighed by the other 12 factors. 13 Accordingly, IT IS HEREBY RECOMMENDED that: 14 1. The action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). 15 2. The Clerk of Court be directed to close this case. 16 These findings and recommendations are submitted to the assigned judge, Judge Brennan. 17 Within fourteen (14) days after being served with these findings and recommendations, any party 18 may file written objections with the court and serve a copy on all parties. Such a document 19 should be captioned “Objections to the Findings and Recommendations.” Any reply to the 20 objections shall be served on all parties and filed with the court within fourteen (14) days after 21 service of the objections. The parties are advised that failure to file objections within the 22 specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 23 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 24 25 IT IS SO RECOMMENDED. Dated: March 10, 2016 26 27 28 3
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
