-SKO Taylor v. Central Mortgage Company, No. 1:2011cv00199 - Document 7 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the Complaint 2 be DISMISSED pursuant to Local Rule 110, for Plaintiff's failure to obey the Court's order of February 11, 2011. Objections to these findings and recommendations are due within twenty (20) days of service of this recommendation. Matter referred to Judge O'Neill; signed by Magistrate Judge Sheila K. Oberto on 4/4/2011. (Timken, A)

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-SKO Taylor v. Central Mortgage Company Doc. 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PHILLIS A. TAYLOR, 12 13 14 CASE NO. 1:11-cv-00199-LJO-SKO Plaintiff, FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S COMPLAINT BE DISMISSED v. CENTRAL MORTGAGE COMPANY, 15 Defendant. OBJECTIONS DUE: 20 DAYS 16 / 17 18 I. INTRODUCTION 19 On February 4, 2011, Plaintiff Phyllis A. Taylor ("Plaintiff") filed a complaint against 20 Defendant Central Mortgage Company ("Defendant") "to produce original Promissory Note signed 21 by Plaintiff on April 25, 2006." (Doc. 2.) On February 11, 2011, the Court dismissed Plaintiff's 22 complaint and granted 30 days leave to amend. (Doc. 6.) Plaintiff failed to file an amended 23 complaint. 24 II. DISCUSSION 25 Local Rule 110 provides that "[f]ailure of counsel or of a party to comply with these Rules 26 or with any order of the Court may be grounds for the imposition by the Court of any and all 27 sanctions . . . within the inherent power of the Court." District courts have the inherent power to 28 control their dockets and "[i]n the exercise of that power they may impose sanctions, including, Dockets.Justia.com 1 where appropriate . . . dismissal." Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). 2 A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 3 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 4 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 5 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 6 amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for 7 failure to comply with local rule requiring pro se plaintiff to keep court apprised of address); Malone 8 v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with 9 court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to lack 10 of prosecution and failure to comply with local rules). 11 In determining whether to dismiss an action for lack of prosecution, failure to obey a court 12 order, or failure to comply with local rules, the court must consider several factors: (1) the public’s 13 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk 14 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 15 (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 16 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 17 In the instant case, the Court finds that the public’s interest in expeditiously resolving this 18 litigation and the Court’s interest in managing the docket weigh in favor of dismissal. The third 19 factor, risk of prejudice to defendants, also weighs in favor of dismissal, since a presumption of 20 injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air 21 West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – public policy favoring disposition of 22 cases on their merits – is greatly outweighed by the factors in favor of dismissal discussed herein. 23 Finally, a court’s warning to a party that his failure to obey the court’s order will result in dismissal 24 satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d 25 at 132-33; Henderson, 779 F.2d at 1424. The Court’s February 11, 2011, order expressly stated that 26 failure to amend the complaint would result in a recommendation of dismissal. (Doc. 6.) Thus, 27 Plaintiff had adequate warning that dismissal would result from her noncompliance with the Court’s 28 order. 2 1 III. 2 3 CONCLUSION AND RECOMMENDATION Accordingly, the Court HEREBY RECOMMENDS that the Complaint be DISMISSED pursuant to Local Rule 110, for Plaintiff's failure to obey the Court's order of February 11, 2011. 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 304. Within twenty (20) 6 days of service of this recommendation, any party may file written objections to these findings and 7 recommendations with the Court and serve a copy on all parties. Such a document should be 8 captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge 9 will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. 10 § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 11 waive the right to appeal the district judge's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 13 IT IS SO ORDERED. 14 Dated: ie14hj April 4, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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