Anthony Nuno v. California State University, Bakersfield et al, No. 1:2017cv00978 - Document 7 (E.D. Cal. 2017)
Court Description: FINDINGS and RECOMMENDATIONS Dismissing the Action Without Prejudice for Plaintiff's Failure to Comply with the Court's Order and Failure to Prosecute, signed by Magistrate Judge Jennifer L. Thurston on 12/16/2017. Referred to Judge Anthony W. Ishii. Objections to F&R due within 14 days. (Hall, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY NUNO, 12 Plaintiff, v. 13 14 15 CALIFORNIA STATE UNIVERSITY BAKERSFIELD, et al. Defendants. 16 17 ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-0978 -AWI-JLT FINDINGS AND RECOMMENDATIONS DISMISSING THE ACTION WITHOUT PREJUDICE FOR PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S ORDER AND FAILURE TO PROSECUTE Anthony Nuno asserts that he has been subjected to harassment and retaliation based upon his 18 race and national origin, and sought to state claims for violations of his Title VII rights. Because 19 Plaintiff has failed to comply with the Court’s order to file an amended complaint and failed to 20 prosecute the action, it is recommended the action be DISMISSED without prejudice. 21 I. Relevant Background 22 Plaintiff initiated this action by filing a complaint on July 24, 2017. (Doc. 1) The Court 23 reviewed the complaint, and found Plaintiff failed “to set forth sufficient factual allegations to support 24 the claims alleged.” (Doc. 3) Therefore, the Court dismissed the complaint with leave to amend, and 25 granted Plaintiff thirty days from the date of service to file an amended complaint. (Id. at 6) On 26 October 19, 2017, Plaintiff filed a motion for an extension of time to file an amended complaint. 27 (Doc. 4) The Court granted the request and ordered Plaintiff to file an amended complaint no later 28 than November 20, 2017. (Doc. 5) 1 Plaintiff failed to file an amended complaint, after which the Court issued an order to Plaintiff 1 2 to show cause why the action should not be dismissed for failure to comply with the Court’s order and 3 failure to prosecute the action, or in the alternative to file an amended complaint. (Doc. 6) To date, 4 Plaintiff has not responded to the Court’s order, or taken any additional action to prosecute the matter. 5 II. Failure to Prosecute and Obey the Court’s Orders The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a 6 7 party to comply with . . . any order of the Court may be grounds for the imposition by the Court of any 8 and all sanctions . . . within the inherent power of the Court.” LR 110. “District courts have inherent 9 power to control their dockets,” and in exercising that power, a court may impose sanctions including 10 dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 11 1986). A court may dismiss an action for a party’s failure to prosecute an action or failure to obey a 12 court order. See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure 13 to comply with an order to file an amended complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 14 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 15 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 16 III. 17 Discussion and Analysis To determine whether to dismiss an action for failure to prosecute and failure to obey a Court 18 order, the Court must consider several factors, including: “(1) the public’s interest in expeditious 19 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 20 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability 21 of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61; 22 Thomspon, 782 F.2d at 831. Public interest and the Court’s docket 23 A. 24 In the case at hand, the public’s interest in expeditiously resolving this litigation and the 25 Court’s interest in managing the docket weigh in favor of dismissal. See Yourish v. Cal. Amplifier, 26 191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always 27 favors dismissal”); Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent interest in 28 managing their dockets without being subject to noncompliant litigants). This Court cannot, and will 2 1 not hold, this case in abeyance based upon Plaintiff’s failure to comply with the Court’s orders and 2 failure to take action to continue prosecution in a timely manner. See Morris v. Morgan Stanley & 3 Co., 942 F.2d 648, 652 (9th Cir. 1991) (explaining a plaintiff has the burden “to move toward… 4 disposition at a reasonable pace, and to refrain from dilatory and evasive tactics”). Accordingly, these 5 factors weigh in favor of dismissal of the action. 6 B. Prejudice to Defendant 7 To determine whether the defendant suffers prejudice, the Court must “examine whether the 8 plaintiff’s actions impair the … ability to go to trial or threaten to interfere with the rightful decision of 9 the case.” Malone, 833 F.2d at 131 (citing Rubin v. Belo Broadcasting Corp., 769 F.2d 611, 618 (9th 10 Cir. 1985)). Significantly, a presumption of prejudiced arises when a plaintiff unreasonably delays the 11 prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). Here, Plaintiff 12 has not taken any action to further prosecuting the action, despite being ordered by the Court to do so. 13 Therefore, this factor weighs in favor of dismissal. 14 C. 15 The Court “abuses its discretion if it imposes a sanction of dismissal without first considering 16 the impact of the sanction and the adequacy of less drastic sanctions.” United States v. Nat’l Medical 17 Enterprises, Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, the Ninth Circuit has determined that a 18 court’s warning to a party that his failure to obey could result in dismissal satisfies the “consideration 19 of alternatives” requirement. See Malone, 833 F.2d at 133; Ferdik, 963 F.2d at 1262. As the Ninth 20 Circuit explained, “a plaintiff can hardly be surprised” by a sanction of dismissal “in response to 21 willful violation of a pretrial order.” Malone, 833 F.2d at 133. 22 Consideration of less drastic sanctions Here, the Court warned Plaintiff in the order dismissing the complaint with leave to amend that 23 failure to comply with the Court’s order “will result in a recommendation that this action be 24 dismissed pursuant to Local Rule 110.” (Doc. 3 at 6, emphasis in original) In the order to show 25 cause, Plaintiff was again warned that the Court may dismiss the action for “failure to prosecute an 26 action or failure to obey a court order, or failure to comply with local rules.” (Doc. 6 at 2) Importantly, 27 the Court need only warn a party once that the matter could be dismissed for failure to comply to 28 satisfy the requirements of Rule 41. Ferdik, 963 F.2d at 1262; see also Titus v. Mercedes Benz of North 3 1 America, 695 F.2d 746, 749 n.6 (3rd Cir. 1982) (identifying a “warning” as an alternative sanction). 2 Accordingly, the warnings to Plaintiff satisfied the requirement that the Court consider lesser sanctions, 3 and this factor weighs in favor of dismissal of the action. See Ferdik, 963 F.2d at 1262; Henderson, 4 779 F.2d at 1424; Titus, 695 F.2d at 749 n.6. 5 D. Public policy 6 Given Plaintiff’s failure to prosecute the action and failure to comply with the Court’s orders, 7 the policy favoring disposition of cases on their merits is outweighed by the factors in favor of 8 dismissal. See Malone, 833 F.2d at 133, n.2 (explaining that although “the public policy favoring 9 disposition of cases on their merits . . . weighs against dismissal, it is not sufficient to outweigh the 10 other four factors”). 11 IV. 12 13 Findings and Recommendations Plaintiff has failed to comply with the Court’s orders dated October 24, 2017 (Doc. 5) and November 27, 2017 (Doc. 6). In doing so, Plaintiff has also failed to prosecute this action. 14 Based upon the foregoing, the Court RECOMMENDS: 15 1. This action be DISMISSED without prejudice; and 16 2. The Clerk of Court be DIRECTED to close the action. 17 These Findings and Recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local 19 Rules of Practice for the United States District Court, Eastern District of California. Within fourteen 20 days after being served with these Findings and Recommendations, any party may file written 21 objections. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 22 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 23 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); 24 Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014). 25 26 27 28 IT IS SO ORDERED. Dated: December 16, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 4
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