(PS) Ali v. Trans Union et al, No. 1:2015cv00270 - Document 18 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Complaint Should be Dismissed With Prejudice for Failure to Prosecute. Matter referred to Judge Mueller. Objections to F&R due within fourteen (14) days of service of this recommendation; signed by Magistrate Judge Sheila K. Oberto on 8/25/2015. (Timken, A)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 WALLY S. ALI, Plaintiff, 10 11 Case No. 1:15-cv-00270-KJM- SKO FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE FOR FAILURE TO PROSECUTE v. 12 13 14 15 EXPERIAN INFORMATION SOLUTIONS, INC.; EQUIFAX, INC., OBJECTIONS DUE: 14 DAYS Defendants. _____________________________________/ 16 17 INTRODUCTION 18 19 Plaintiff Wally S. Ali (“Plaintiff”) removed this to federal court from Fresno County 20 Superior Court in February of 2015. (Doc. 1.) A case management conference (“CMC”) was set 21 for April 16, 2015 (Doc. 3) and a scheduling conference was set for May 19, 2015 (Doc. 2). 22 Defendant Equifax, Inc. filed an answer with a jury demand on February 26, 2015. (Doc. 6.) 23 Defendant Tran Union, LLC, was dismissed from the case on March 3, 2015. (Docs. 9; 10.) 24 Because no proof of service was filed and Defendant Experian Information Solutions, Inc. 25 (“Experian”) had not yet answered the complaint, the Court continued the CMC and consolidated 26 it with the scheduling conference on May 19, 2015, and ordered Plaintiff to file proof of service or 27 a status report indicating whether Plaintiff intended to continue to prosecute this case against 28 Defendant Experian. (Doc. 11.) 1 The May 19, 2015, scheduling conference was vacated following reassignment of the case 2 to District Judge Kimberly J. Mueller. (Doc. 12.) On May 21, 2015, Judge Mueller referred the 3 matter to the undersigned for all pretrial scheduling. (Doc. 14.) 4 On May 22, 2015, the scheduling conference was reset for July 30, 2015, and Plaintiff was 5 ordered to address the status of Defendant Experian in the parties’ joint scheduling report. 6 (Doc. 15.) Although the parties were ordered to file a joint scheduling report one week before the 7 July 30, 2015, scheduling conference (Doc. 15), no joint report was filed. 8 On July 27, 2015, the Court issued an Order to Show Cause (“OSC”) why sanctions up to 9 and including dismissal should not be imposed for failure to prosecute, and reset the scheduling 10 conference and set the OSC hearing for August 27, 2015. (Doc. 17.) Although Plaintiff was 11 ordered to file a statement showing why sanctions should not be imposed for failing to comply 12 with the Court’s May 22, 2015, minute order by no later than August 13, 2015 (Doc. 17), no such 13 statement was filed. Additionally, no joint report was filed as required in advance of the August 14 27, 2015, scheduling conference. 15 16 DISCUSSION Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 17 or with any order of the Court may be grounds for the imposition by the Court of any and all 18 sanctions . . . within the inherent power of the Court.” District courts have the inherent power to 19 control their dockets and “[i]n the exercise of that power they may impose sanctions, including, 20 where appropriate ... dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). 21 A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 22 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 23 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. 24 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order 25 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir.1988) 26 (dismissal for failure to comply with local rule requiring pro se plaintiff to keep court apprised of 27 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for 28 failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 2 1 (dismissal for failure to prosecute and failure to comply with local rules). 2 In determining whether to dismiss an action for lack of prosecution, failure to obey a court 3 order, or failure to comply with local rules, the court must consider several factors: (1) the public’s 4 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 5 risk of prejudice to the defendant; (4) the public policy favoring disposition of cases on their 6 merits; and (5) the availability of less drastic alternatives. Pagtalunan v. Galaza, 291 F.3d 639, 7 642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at 1260-61; Thompson, 782 F.2d at 831); Henderson, 8 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 9 53. “The public’s interest in expeditious resolution of litigation always favors dismissal.” 10 Pagtalunan, 291 F.3d at 642 (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 11 1999)). 12 Here, the Court finds that the public’s interest in expeditiously resolving this litigation and 13 the Court’s interest in managing the docket weigh in favor of dismissal. The third factor, risk of 14 prejudice to defendants, also weighs in favor of dismissal, since a presumption of injury arises 15 from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542 16 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition of cases on 17 their merits -- is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, 18 a court’s warning to a party that his failure to obey the court’s order will result in dismissal 19 satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 20 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s July 27, 2015, order expressly ordered 21 Plaintiff to file a statement why sanctions should not be imposed for failing to comply with the 22 Court’s May 22, 2015, minute order requiring Plaintiff to address the status of his prosecution of 23 the complaint. (Doc. 17.) Thus, Plaintiff had adequate warning that sanctions, up to and including 24 dismissal of the case, would result from his noncompliance with the Court’s July 27, 2015, order. 25 Because Plaintiff still has not filed any proof of service, the Court has no information 26 whether Defendant Experian has been served. As no joint report has been filed, the Court has no 27 information as to the status of Plaintiff’s case against Defendant Equifax, Inc. Despite the Court’s 28 repeated admonitions, Plaintiff has exhibited no intent to proceed with prosecuting his case. 3 1 Pursuant to Local Rule 110 and the Court’s inherent power to sanction, the undersigned 2 RECOMMENDS that this case be DISMISSED with prejudice. 3 CONCLUSION AND RECOMMENDATION 4 Accordingly, IT IS HEREBY RECOMMENDED that this case be DISMISSED with 5 prejudice for failing to comply with the Court’s July 27, 2015, order. 6 These findings and recommendations are submitted to the district judge assigned to this 7 action, pursuant to 28 U.S.C. § 636(b)(1) (B) and this Court's Local Rule 304. Within fourteen 8 (14) days of service of this recommendation, any party may file written objections to these 9 findings and recommendations with the Court and serve a copy on all parties. Such a document 10 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 11 district judge will review the magistrate judge’s findings and recommendations pursuant to 12 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the 13 specified time may waive the right to appeal the district judge's order. Wilkerson v. Wheeler, 772 14 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 IT IS SO ORDERED. 17 Dated: August 25, 2015 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 4
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