(PC) Pak v. Six Unknown Names Agents Or Mr. President Of The United States Barack Obama, No. 1:2013cv01606 - Document 5 (E.D. Cal. 2013)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss 1 Case for Plaintiff's Failure to Comply with Court Order signed by Magistrate Judge Gary S. Austin on 12/11/2013. Referred to Judge Ishii; Objections to F&R due by 1/14/2014. (Flores, E)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAE JUNE PAK, 12 13 14 15 Plaintiff, vs. SIX UNKNOWN NAMES AGENTS, et al., Defendants. 16 1:13-cv-01606-AWI-GSA-PC FINDINGS AND RECOMMENDATIONS TO DISMISS CASE FOR PLAINTIFF’S FAILURE TO COMPLY WITH COURT ORDER (Doc. 3.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS 17 On October 22, 2013, the court issued an order requiring plaintiff to file a signed 18 complaint, and either submit an application to proceed in forma pauperis or pay the filing fee 19 for this action, within thirty days. (Doc. 3.) The thirty day time period has expired, and 20 plaintiff has not filed a signed complaint, paid the filing fee, submitted an application, or 21 otherwise responded to the court's order.1 22 In determining whether to dismiss this action for failure to comply with the directives 23 set forth in its order, Athe Court must weigh the following factors: (1) the public=s interest in 24 expeditious resolution of litigation; (2) the court=s need to manage its docket; (3) the risk of 25 26 27 28 1 On November 6, 2013, the U.S. Postal Service returned the order as undeliverable, with a notation on the envelope that the mail was “Refused, Unable to Forward.” (Court Record.) Prior court mail sent to plaintiff on October 8, 2013, was returned by the U.S. Postal service as undeliverable on October 28, 2013, indicating that Plaintiff was “Released.” (Id.) However, plaintiff has not notified the court of any change in his address. Absent such notice, service at a party=s prior address is fully effective. Local Rule 182(f). 1 1 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 2 public policy favoring disposition of cases on their merits.@ Pagtalunan v. Galaza, 291 F.3d 3 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 4 A>The public=s interest in expeditious resolution of litigation always favors dismissal,=@ 5 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 6 action has been pending since October 7, 2013. Plaintiff's failure to apprise the court of his 7 current address so he can respond to the court's order may reflect Plaintiff's disinterest in 8 prosecuting this case. In such an instance, the court cannot continue to expend its scarce 9 resources assisting a litigant who will not help himself by filing a signed complaint in the first 10 place, and ensuring that the court has his current address so he can respond to the court’s order. 11 Thus, both the first and second factors weigh in favor of dismissal. 12 Turning to the risk of prejudice, Apendency of a lawsuit is not sufficiently prejudicial in 13 and of itself to warrant dismissal.@ Id. (citing Yourish at 991). However, Adelay inherently 14 increases the risk that witnesses= memories will fade and evidence will become stale,@ id., and it 15 is Plaintiff's failure to respond to the court's order that is causing delay. Therefore, the third 16 factor weighs in favor of dismissal. 17 As for the availability of lesser sanctions, at this stage in the proceedings there is little 18 available to the court which would constitute a satisfactory lesser sanction while protecting the 19 court from further unnecessary expenditure of its scarce resources. Plaintiff has not paid the 20 filing fee for this action, making it likely that Plaintiff is indigent, which would make monetary 21 sanctions of little use, and given the early stage of these proceedings, the preclusion of 22 evidence or witnesses is not available. However, inasmuch as the dismissal being considered in 23 this case is without prejudice, the court is stopping short of issuing the harshest possible 24 sanction of dismissal with prejudice. 25 26 27 28 Finally, because public policy favors disposition on the merits, this factor will always weigh against dismissal. Id. at 643. Accordingly, the court HEREBY RECOMMENDS that this action be dismissed without prejudice, based on plaintiff's failure to obey the court=s order of October 22, 2013. 2 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty 3 days after being served with these findings and recommendations, plaintiff may file written 4 objections with the court. Such a document should be captioned "Objections to Magistrate 5 Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections 6 within the specified time may waive the right to appeal the District Court's order. Martinez v. 7 Ylst, 951 F.2d 1153 (9th Cir. 1991). 8 9 10 11 IT IS SO ORDERED. Dated: 12 13 14 December 11, 2013 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 6i0kij8d 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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