Flores v. Red Robin, No. 1:2017cv00396 - Document 13 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this Case be Dismissed With Prejudice for Failure to Comply with a Court Order. (Doc. 11.) Matter referred to Judge O'Neill. Objections to F&R due within fourteen (14) days of service of this recommendation; signed by Magistrate Judge Sheila K. Oberto on 3/27/2018. (Timken, A)
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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 Case No. 1:17-cv-00396-LJO-SKO MOSES FLORES, Plaintiff, 7 8 FINDINGS AND RECOMMENDATIONS THAT THIS CASE BE DISMISSED WITH PREJUDICE FOR FAILURE TO COMPLY WITH A COURT ORDER v. 9 10 (Doc. 11) RED ROBIN, Defendant. 11 OBJECTIONS DUE: 14 DAYS 12 13 I. 14 15 INTRODUCTION On June 29, 2017, Plaintiff Moses Flores (“Plaintiff”) filed an amended complaint against Defendant Red Robin (“Defendant”). (Doc. 9.) Plaintiff had also filed an application to proceed 16 in forma pauperis with his original complaint. (Doc. 2.) On November 28, 2017, the undersigned 17 issued findings and recommendations that Plaintiff’s amended complaint be dismissed, without 18 leave to amend, for failure to state a cognizable federal claim. (Doc. 10.) On January 18, 2018, 19 20 the assigned district judge adopted the findings and recommendations in part, “agree[ing] . . . that the currently operative complaint fails to state a claim,” but concluding that one final opportunity 21 to amend was warranted. (Doc. 11 at 2.) The assigned district judge found, in particular, that the 22 amended complaint alleged facts suggesting the possible existence of viable causes of action for 23 retaliation under Title VII of the Civil Rights Act of 1964 and the Equal Pay Act. (Id. at 2-3.) 24 The assigned district judge ordered Plaintiff to file a second amended complaint, if any, within 25 thirty days of the date of the order. (Id. at 4.) More than thirty days have elapsed without Plaintiff 26 having filed a second amended complaint. 27 // 28 1 On March 1, 2018, the Court entered an Order to Show Cause (“OSC”) ordering Plaintiff 2 to file a statement showing cause why the Court should not recommend to the presiding district 3 court judge that this action be dismissed for Plaintiff’s failure to comply with the Court’s January 4 18, 2018 Order by not filing a second amended complaint within the specified period of time. 5 (Doc. 12.) In its OSC, the Court cautioned Plaintiff that, if he failed to file this statement within 6 21 days of service of the OSC, the Court would recommend to the presiding district court judge 7 that this action be dismissed, in its entirety. (Id.) More than 21 days of service of the OSC have 8 elapsed without Plaintiff having filed a response to the OSC. 9 II. DISCUSSION 10 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 11 or with any order of the Court may be grounds for the imposition by the Court of any and all 12 sanctions . . . within the inherent power of the Court.” District courts have the inherent power to 13 control their dockets and “[i]n the exercise of that power they may impose sanctions, including, 14 where appropriate . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). 15 A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 16 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 17 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 18 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 19 amendment of complaint); Carey v. King, 856 F.2d 1439, 1440–41 (9th Cir. 1988) (dismissal for 20 failure to comply with local rule requiring pro se plaintiff to keep court apprised of address); 21 Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to 22 comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal 23 for failure to prosecute and failure to comply with local rules). 24 In determining whether to dismiss an action for failure to obey a court order or failure to 25 comply with the Local Rules, the court must consider several factors, including: “(1) the public’s 26 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 27 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 28 merits; and (5) the availability of less drastic sanctions.” Henderson, 779 F.2d at 1423–24; see 2 1 also Ferdik, 963 F.2d at 1260–61; Thompson, 782 F.2d at 831. “The public’s interest in 2 expeditious resolution of litigation always favors dismissal.” Pagtalunan v. Galaza, 291 F.3d 639, 3 642 (9th Cir. 2002) (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). 4 Here, the Court finds that the public’s interest in expeditiously resolving this litigation and 5 the Court’s interest in managing the docket weigh in favor of dismissal. The third factor, risk of 6 prejudice to Defendant, also weighs in favor of dismissal, since a presumption of injury arises 7 from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542 8 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy favoring disposition of cases on 9 their merits—is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, 10 a court’s warning to a party that his failure to obey the court’s order will result in dismissal 11 satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 12 F.2d at 132–33; Henderson, 779 F.2d at 1424. The OSC expressly ordered Plaintiff to file a 13 statement showing cause why the Court should not recommend to the presiding district court 14 judge that this action be dismissed for failing to comply with the Court’s January 18, 2018 Order 15 by not filing a second amended complaint within the specified period of time. (Doc. 12.) Thus, 16 Plaintiff had adequate warning that sanctions, up to and including dismissal of the case, would 17 result from his noncompliance with the OSC. Accordingly, pursuant to Local Rule 110 and the Court’s inherent power to sanction, the 18 19 undersigned RECOMMENDS that this case be DISMISSED with prejudice. 20 III. CONCLUSION AND RECOMMENDATION 21 Based on the foregoing, IT IS HEREBY RECOMMENDED that this case be DISMISSED 22 with prejudice for failure to comply with the Court’s Orders entered January 18 and March 1, 23 2018. 24 25 The Court further DIRECTS the Clerk to send a copy of this order to Plaintiff at his address listed on the docket for this matter. 26 These findings and recommendations are submitted to the district judge assigned to this 27 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 28 (14) days of service of this recommendation, any party may file written objections to these 3 1 findings and recommendations with the Court and serve a copy on all parties. Such a document 2 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 3 district judge will review the magistrate judge’s findings and recommendations pursuant to 28 4 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 5 time may waive the right to appeal the district judge’s order. Wilkerson v. Wheeler, 772 F.3d 834, 6 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 8 9 10 IT IS SO ORDERED. Dated: March 27, 2018 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 .