Morris v. State Bar of California et al, No. 1:2009cv00026 - Document 93 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Unserved Defendants signed by Magistrate Judge Gary S. Austin on 12/16/2009. Matter referred to Judge Lawrence J. O'Neill; Objections to F&R due within 10 days of service. (Esteves, C)
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Morris v. State Bar of California et al Doc. 93 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 GREGORY MORRIS, 11 Plaintiff, 12 v. 13 STATE BAR OF CALIFORNIA, et al., 14 15 Defendants. ) 1:09-cv-00026 LJO GSA ) ) FINDINGS AND RECOMMENDATIONS ) TO DISMISS UNSERVED DEFENDANTS ) ) ) ) ) ) ) ) 16 17 18 19 INTRODUCTION Plaintiff Gregory Morris, originally pro se and currently represented by counsel,1 filed his 20 complaint on June 4, 2007, in the Northern District of the United States District Court, alleging 21 numerous violations of his civil rights and other rights protected by federal disability laws. The 22 complaint named a total of seventeen defendants. (Doc. 1.) 23 On November 24, 2009, this Court issued an order to show cause directing Plaintiff to 24 explain in writing why he has failed to serve the summons and complaint on the following 25 Defendants: Safeco Insurance Company, Safeco Insurance Company of America, Safeco 26 27 1 28 On October 2, 2008, a Substitution of Attorney was filed with the Northern District of California wherein Michael J. McGinnis became Plaintiff’s counsel of record. (Doc. 45.) 1 Dockets.Justia.com 1 Insurance Company of Illinois, Robert Dirscal,2 Crawford and Company, Option One Mortgage 2 Company, Long Beach Mortgage Company, Premier Trust Deed Services Company, and San 3 Francisco Safeco Legal Services Company.3 The order admonished Plaintiff that dismissal 4 would be recommended “if Plaintiff fails to comply with this Order and to show good cause 5 for failure to accomplish service of the summons and complaint.” (Doc. 92 at 3, emphasis in 6 original.) Plaintiff has failed to file documents to show proof of service of the summons and 7 complaint on the Defendants identified. Plaintiff has also failed to show cause in writing why 8 these Defendants should not be dismissed. 9 DISCUSSION 10 Failure to Serve Defendants 11 Federal Rules of Civil Procedure Rule 4(m) sets a 120-day time limit to serve a summons 12 13 14 15 and complaint on a defendant: If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. 16 17 The rule “encourages efficient litigation by minimizing the time between commencement 18 of an action and service of process.” Electric Specialty Co. v. Road and Ranch Supply, Inc., 967 19 F.2d 309, 311 (9th Cir. 1992) (addressing former F.R.Civ.P. 4(j)). 20 This action has proceeded for more than two years, and Plaintiff has failed to pursue his 21 claims against Safeco Insurance Company, Safeco Insurance Company of America, Safeco 22 Insurance Company of Illinois, Robert Dirscal, Crawford and Company, Option One Mortgage 23 Company, Long Beach Mortgage Company, Premier Trust Deed Services Company, and San 24 Francisco Safeco Legal Services Company. The November 24, 2009, order granted Plaintiff an 25 26 27 28 2 For the sake of clarity, “Dirscal” is the spelling on the face of Plaintiff’s Complaint; however, Judge Hamilton’s August 2008 order, references both to a “Robert Driscal” and a “James Driscoll.” See Doc. 42 at n. 1 & n. 4. 3 The face of the Complaint actually reads “San Francisco Safco Legal Services Company.” 2 1 opportunity to explain why these Defendants should not be dismissed. Plaintiff has not 2 responded to the order. Plaintiff has not attempted to establish good cause for his failure to serve 3 the aforementioned Defendants. 4 Failure To Comply With Court Orders 5 In addition, Plaintiff has failed to comply with the November 24, 2009, order in that he 6 has not filed papers to address service of the aforementioned Defendants nor has he explained 7 why these Defendants should not be dismissed. This Court’s Local Rule 11-110 provides that 8 the “. . . failure of counsel or of a party to comply with these Local Rules or with any order of the 9 Court may be grounds for the imposition by the Court of any and all sanctions . . . within the 10 inherent power of the Court.” District courts have inherent power to control their dockets and 11 “in the exercise of that power, they may impose sanctions including, where appropriate . . . 12 dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court 13 may dismiss an action, with prejudice, based on a party’s failure to obey a court order or local 14 rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for 15 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 16 (dismissal for failure to comply with an order requiring amendment of complaint); Carey v. King, 17 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring 18 pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 19 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 20 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with 21 local rules). 22 In determining whether to dismiss an action for failure to obey a court order, a court must 23 consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the 24 court’s need to manage its docket; (3) the risk of prejudice to defendant; (4) the public policy 25 favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. 26 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 27 963 F.2d at 1260-1261; Ghazali, 46 F.3d at 53. 28 // 3 1 In this case, the Court finds that the public’s interest in expeditiously resolving this 2 litigation and the Court’s interest in managing its docket weigh in favor of the dismissal of 3 Safeco Insurance Company, Safeco Insurance Company of America, Safeco Insurance Company 4 of Illinois, Robert Dirscal, Crawford and Company, Option One Mortgage Company, Long 5 Beach Mortgage Company, Premier Trust Deed Services Company, and San Francisco Safeco 6 Legal Services Company, as Plaintiff has not advanced his claims against these Defendants with 7 his unexplained failure to serve them with process. The third factor -- risk of prejudice to 8 defendant -- also weighs in favor of the dismissal of the aforementioned Defendants since a 9 presumption of injury arises from unreasonable delay to prosecute an action. Anderson v. Air 10 West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition 11 of cases on their merits -- is greatly outweighed by the factors in favor of the aforementioned 12 Defendants’ dismissal. Finally, a court’s warning to a party that failure to obey the court’s order 13 will result in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d 14 at 1262; Malone, 833 F.2d at 132-133; Henderson, 779 F.2d at 1424. The November 24, 2009, 15 order admonished Plaintiff that the Court would recommend dismissal for a failure “to comply 16 with this Order and to show good cause for failure to accomplish service of the summons 17 and complaint.” (Doc. 92 at 3, emphasis in original.) Thus, Plaintiff received adequate warning 18 that the dismissal of these Defendants would result from noncompliance with this Court’s order 19 and failure to prosecute this action. Quite simply, Plaintiff has failed to comply with this Court’s 20 order to address service of process on the aforementioned Defendants and to pursue claims 21 against them. 22 CONCLUSION AND RECOMMENDATION 23 Accordingly, this Court RECOMMENDS to DISMISS without prejudice this action 24 against Safeco Insurance Company, Safeco Insurance Company of America, Safeco Insurance 25 Company of Illinois, Robert Dirscal, Crawford and Company, Option One Mortgage Company, 26 Long Beach Mortgage Company, Premier Trust Deed Services Company, and San Francisco 27 Safeco Legal Services Company: (1) on the grounds that Plaintiff has failed to take measures to 28 accomplish service of process upon the aforementioned Defendants; and (2) pursuant to Local 4 1 Rule 11-110 for Plaintiff’s failure to comply with this Court’s November 24, 2009, order, to 2 meaningfully and intelligently respond to the order, and to prosecute claims against the 3 aforementioned Defendants. 4 These findings and recommendations are submitted to the district judge assigned to this 5 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 72-304. Within ten 6 (10) days of service of this recommendation, any party may file written objections to these 7 findings and recommendations with the Court and serve a copy on all parties. Such a document 8 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 9 district judge will review the magistrate judge’s findings and recommendations pursuant to 28 10 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 11 time may waive the right to appeal the district judge’s order. Martinez v. Ylst, 951 F.2d 1153 12 (9th Cir. 1991). 13 14 15 IT IS SO ORDERED. Dated: 6i0kij December 16, 2009 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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