Osegueda et al v. Stanislaus County Public Safety Center et al, No. 1:2016cv01218 - Document 82 (E.D. Cal. 2022)
Court Description: FINDINGS and RECOMMENDATIONS recommending Dismissal of action for failure to obey a court order 50 , 74 , 81 signed by Magistrate Judge Barbara A. McAuliffe on 6/16/2022. Referred to Judge Jennifer L. Thurston; Objections to F&R's due within 14-Days. (Lundstrom, T)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARMANDO OSEGUEDA, et al., 12 13 14 15 Plaintiffs, AMENDED FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO OBEY A COURT ORDER v. STANISLAUS COUNTY PUBLIC SAFETY CENTER, et al., Defendants. 16 Case No. 1:16-cv-01218-JLT-BAM (Docs. 50, 74, 81) FOURTEEN-DAY DEADLINE Findings and Recommendations 17 18 I. Background 19 Plaintiffs Armando Osegueda and Robert Palomino initiated this action on August 16, 20 2016. (Doc. 1.) Plaintiffs’ Second Amended Complaint, filed on February 5, 2017, added 21 Plaintiffs David Lomeli and Jairo Hernandez. (Doc. 22.) On January 29, 2019, the Court 22 approved the parties’ stipulation to stay this matter pending resolution of the state criminal 23 proceedings against Plaintiffs Armando Osegueda and Robert Palomino. (Doc. 50.) The Court 24 ordered Plaintiffs to file a written status report every ninety (90) days notifying the Court of the 25 status of the criminal matter. (Id.) 26 On December 27, 2019, after no status reports had been filed, the Court issued an Order to 27 Show Cause why sanctions should not be imposed for failure to comply with an order of the 28 Court. (Doc. 53.) Plaintiffs were required to file either a written response or the required status 1 1 report by January 10, 2020. (Id.) Plaintiffs did not file a written response or a status report in 2 compliance with the Court’s order. Accordingly, on January 29, 2020, the Court ordered 3 Plaintiffs’ counsel Amber Hope Gordon to personally appear before the Court on February 12, 4 2020, to show cause why the action should not be dismissed for failure to prosecute and failure to 5 comply with the Court’s orders. (Doc. 56.) Counsel was permitted to comply with the Court’s 6 January 29, 2020 Order to Show Cause by filing the required status report by February 10, 2020. 7 (Id.) On January 29, 2020, Plaintiffs filed the required status report, (Doc. 54), and the Court 8 discharged the Orders to Show Cause issued December 27, 2019, and January 29, 2020, (Doc. 9 No. 60). Counsel was cautioned that any future failure to comply with an order of the Court 10 11 would result in the imposition of sanctions. (Id.) On May 4, 2020, after Plaintiffs again failed to file a status report, the Court issued a third 12 Order to Show Cause why sanctions should not be imposed for failure to obey a court order. 13 (Doc. 60.) Plaintiffs were ordered to respond in writing within fourteen (14) days and were 14 permitted to comply with the Order to Show Cause by filing the required status report. (Id.) On 15 May 22, 2020, Plaintiffs filed a status report. (Doc. 61.) The Court subsequently discharged the 16 Order to Show Cause but noted that the status report was filed well after the deadline for a 17 response to the Order to Show Cause. (Doc. 62.) Counsel was again warned that future failures to 18 comply with the Court’s orders would result in the imposition of sanctions. (Id.) 19 On August 26, 2020, after Plaintiffs again failed to timely file a status report, the Court 20 issued a fourth order requiring Plaintiffs’ counsel to appear before the Court to show cause why 21 sanctions should not be imposed for failure to obey a court order. (Doc. 63.) On August 27, 2020, 22 Plaintiffs filed the required status report stating that Plaintiffs Osegueda and Palomino’s criminal 23 cases were ongoing. (Doc. 64.) Counsel for Plaintiff further provided a declaration explaining that 24 her failure to file a timely status report was due to the death of her father. (Doc. 64-1.) 25 Although Plaintiffs were not ordered to respond in writing or permitted to comply with the 26 Order to Show Cause by filing a status report, the Court nonetheless discharged the show cause 27 order in light of the contents of Ms. Gordon’s declaration. (Doc. 65.) However, the Court noted 28 that Plaintiffs’ status reports had been tardy on multiple occasions and several orders to show 2 1 cause had been issued in order to secure Plaintiffs’ compliance with applicable deadlines. The 2 Court observed that counsel’s action had caused the Court to unnecessarily expend its resources 3 to gain counsel’s compliance with orders. The Court strongly cautioned Plaintiffs’ counsel 4 against future failures to comply with the Court’s orders as such failures would likely result in the 5 imposition of sanctions. (Id. at 65.) 6 On November 23, 2020, Plaintiffs filed a status report indicating that Plaintiffs Osegueda 7 and Palomino’s criminal cases were ongoing. (Doc. No. 66.) The status report was dated January 8 22, 2020. (Id. at 2.) 9 On April 6, 2021, the Court issued an Order requiring Counsel for Plaintiff to appear in 10 person to show cause why sanctions should not be imposed for failure to obey a Court order when 11 Counsel again failed to file the required status report. (Doc. 67.) On April 7, 2021, Counsel for 12 Plaintiff filed a Status Report indicating that the criminal cases for Plaintiffs Osegueda and 13 Palomino remain ongoing. (Doc. 68.) 14 On April 19, 2021, the Court held a hearing on the Order to Show cause. Counsel Amber 15 Gordon appeared and explained that she failed to file the status report due to a scheduling error 16 and due to her father’s death and funeral. Based on counsel’s representations, the Court 17 discharged the April 6, 2021 Order to Show Cause. However, the Court warned as follows: 18 “Counsel is strongly cautioned that any further failures to comply with a court order will 19 result in a recommendation to the District Judge that this matter be dismissed.” (Doc. 70.) 20 On June 13, 2021, Plaintiffs filed a status report. (Doc. 71.) 21 On November 9, 2021, Plaintiffs filed a status report and motion to continue the stay. 22 (Docs. 72, 73.) The documents were identical, and the motion was terminated as it was a status 23 report. The Court indicated that the stay of this action would remain in place with the parties 24 filing status reports every ninety (90) days. (Doc. 74.) 25 26 27 28 On December 14, 2021, Plaintiffs filed a status report indicating that the criminal cases of Plaintiffs Osegueda and Palomino were ongoing. (Doc. 76.) On April 12, 2022, after more than ninety days had elapsed since the submission of a status report on December 14, 2021, and Plaintiffs again failed to file a timely report, the Court 3 1 issued findings and recommendations that this action be dismissed based on Plaintiff’s failure to 2 obey the Court’s orders. (Doc. 79.) The findings and recommendations were served on the 3 parties and contained notice that any objections thereto were to be filed within fourteen (14) days. 4 (Doc. 79.) 5 In lieu of objections, on April 25, 2022, Plaintiffs’ counsel filed a Case Status Update. 6 (Doc. 80.) According to the update, the criminal cases against Plaintiffs Osegueda and Palomino 7 were ongoing. However, in January 2022, Plaintiff Palomino reportedly terminated counsel’s 8 representation and advised that he was seeking new counsel or intended to proceed in pro per. 9 Counsel also reported that she had not had contact with any of the remaining plaintiffs since 10 11 January 2020 and sought to withdraw from representation as to all parties. (Id.) Based on the update, on April 26, 2022, the undersigned vacated the pending findings and 12 recommendations to dismiss this action. The Court ordered Plaintiffs’ counsel to file a noticed 13 motion to withdraw as counsel in compliance with Local Rule 182 within thirty (30) days. The 14 Court cautioned counsel that “any failure to comply with the Court’s order may result in the 15 imposition of sanctions against counsel and/or reissuance of the recommendation to dismiss this 16 action based on the repeated failure to comply with Court orders.” (Doc. 81 at 2.) More than 17 thirty (30) days have passed since the Court’s order, and no motion to withdraw as counsel has 18 been filed. 19 II. 20 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with Legal Standard 21 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 22 within the inherent power of the Court.” District courts have the inherent power to control their 23 dockets and “[i]n the exercise of that power they may impose sanctions including, where 24 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 25 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 26 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 27 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 28 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 4 1 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 2 (dismissal for failure to comply with court order). 3 In determining whether to dismiss an action, the Court must consider several factors: (1) 4 the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 5 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 6 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 7 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 8 III. Discussion 9 Plaintiffs’ counsel has again failed to comply with a direct order of this Court. As detailed 10 above, counsel has failed to comply with the Court’s orders on multiple occasions, resulting in 11 repeated orders to show cause to secure Plaintiffs’ compliance. Counsel’s dilatory actions have 12 caused the Court to unnecessarily expend its resources to gain counsel’s compliance with orders. 13 Despite repeated warnings, counsel continues to disregard the relevant deadlines and the Court’s 14 directives. The Court cannot effectively manage its docket if Plaintiffs (through counsel) only 15 comply with Court orders when prompted by the Court and warned of potential sanctions. The 16 Court therefore finds that both the first and second factors weigh in favor of dismissal. 17 The third factor, risk of prejudice to the defendant, also weighs in favor of dismissal, as a 18 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 19 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). Without resolution of Plaintiffs’ 20 representation in this matter, prosecution of this action is impeded and further delayed, the Court 21 is unable to determine whether the stay should remain in place or if the litigation may resume. 22 The fourth factor usually weighs against dismissal because public policy favors 23 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 24 “this factor lends little support to a party whose responsibility it is to move a case toward 25 disposition on the merits but whose conduct impedes progress in that direction,” which is the case 26 here. In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 2006) 27 (citation omitted). 28 /// 5 Finally, the Court’s warning to a party that failure to obey the Court’s order will result in 1 2 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 3 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. Plaintiffs’ counsel has had repeated 4 warnings that the failure to comply with the Court’s orders could result in sanctions or a 5 recommendation for dismissal of this action. Indeed, the Court’s April 26, 2022 Order cautioned 6 counsel that “any failure to comply with the Court’s order may result in the imposition of 7 sanctions against counsel and/or reissuance of the recommendation to dismiss this action based on 8 the repeated failures to comply with Court orders.” (Doc. 81 at 2.) 9 Additionally, at this stage in the proceedings there is little available to the Court that 10 would constitute a satisfactory lesser sanction while protecting the Court from further 11 unnecessary expenditure of its scarce resources. Counsel has been repeatedly warned about the 12 imposition of sanctions but has ignored and disregarded the Court’s orders, suggesting that 13 monetary sanctions would be of little use, and the preclusion of evidence or witnesses is likely to 14 have no effect given that litigation of the matter has been stalled by the ongoing criminal 15 proceedings. 16 The Court also finds that filing a status report at this juncture will not cure the ongoing 17 and repetitive failures to comply with the Court’s orders. This is particularly true given counsel’s 18 assertion that she seeks to withdraw from representation in this case. 19 IV. 20 For the reasons stated, it is HEREBY RECOMMENDED that this action be dismissed 21 Conclusion and Recommendation based on Plaintiffs’ ongoing and repeated failures to obey the Court’s orders. 22 These Findings and Recommendations will be submitted to the United States District 23 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 24 fourteen (14) days after being served with these Findings and Recommendations, the parties may 25 file written objections with the Court. The document should be captioned “Objections to 26 Magistrate Judge’s Findings and Recommendations.” The parties are advised that the failure to 27 /// 28 /// 6 1 file objections within the specified time may result in the waiver of the “right to challenge the 2 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 3 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 6 7 IT IS SO ORDERED. Dated: /s/ Barbara June 16, 2022 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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