(PC) Vlasich v. Bendon, et al, No. 1:2004cv05659 - Document 10 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 8/13/2009, recommending that This 1 Action Be DISMISSED Based on Plaintiff's Failure to Obey the Court's Order of May 29, 2009. Referred to Judge Ishii. Objections to F&R due by 9/16/2009. (Jessen, A)
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(PC) Vlasich v. Bendon, et al Doc. 10 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN VLASICH Plaintiff, 12 13 14 vs. M L DR. M L BRENDON, et al. 1:04-cv-05659-AWI-YNP (PC) FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO OBEY A COURT ORDER OBJECTIONS, IF ANY, DUE IN 30 DAYS 15 Defendants. 16 ______________________________/ 17 18 On mAY 29, 2009, the court issued an order Dismissing with Leave to Amend, 19 within thirty (30) days. The thirty (30)-day period has now expired, and plaintiff has not filed an 20 amended complaint or otherwise responded to the court's order. 21 Local Rule 11-110 provides that “failure of counsel or of a party to comply with 22 these Local Rules or with any order of the Court may be grounds for the imposition by the Court 23 of any and all sanctions . . . within the inherent power of the Court.” District courts have the 24 inherent power to control their dockets and “in the exercise of that power, they may impose 25 sanctions including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 26 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a -1Dockets.Justia.com 1 party’s failure to prosecute an action, failure to obey a court order, or failure to comply with local 2 rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)(dismissal for noncompliance 3 with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure 4 to comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 5 1440-41 (9th Cir. 1988)(dismissal for failure to comply with local rule requiring pro se plaintiffs 6 to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 7 1987)(dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 8 1424 (9th Cir. 1986)(dismissal for failure to lack of prosecution and failure to comply with local 9 rules). 10 In determining whether to dismiss an action for lack of prosecution, failure to 11 obey a court order, or failure to comply with local rules, the court must consider several factors: 12 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 13 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 14 cases on their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 15 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; 16 Ghazali, 46 F.3d at 53. 17 In the instant case, the court finds that the public’s interest in expeditiously 18 resolving this litigation and the court’s interest in managing the docket weigh in favor of 19 dismissal. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal, 20 since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an 21 action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public 22 policy favoring disposition of cases on their merits -- is greatly outweighed by the factors in favor 23 of dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey the 24 court’s order will result in dismissal satisfies the “consideration of alternatives” requirement. 25 Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The 26 court’s order expressly stated:"If Plaintiff fails to file an amended complaint, the Court will -2- 1 recommend that this 2 action be dismissed, with prejudice, for failure to state a claim.." Thus, plaintiff had adequate 3 warning that dismissal would result from his noncompliance with the court’s order. Accordingly, the court HEREBY RECOMMENDS that this action be dismissed 4 5 based on plaintiff's failure to obey the court’s order of May 29, 2009. These findings and recommendations are submitted to the United States District 6 7 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 8 thirty days after being served with these findings and recommendations, plaintiff may file written 9 objections with the court. Such a document should be captioned "Objections to Magistrate 10 Judge's Findings and Recommendations." The parties are advised that failure to file objections 11 within the specified time may waive the right to appeal the District Court's order. Martinez v. 12 Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 IT IS SO ORDERED. Dated: j14hj0 August 13, 2009 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 -3-
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