Brooke v. Bhagat et al, No. 1:2017cv01678 - Document 10 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS recommending that to Dismiss Action, with Prejudice, for Failure to Obey Court Orders and Failure to Prosecute. (Doc. 9). Referred to Judge Ishii; Objections to F&R due by within fourteen (14) days after being served with these Findings and Recommendation, Plaintiff may file written objections with the Court. signed by Magistrate Judge Barbara A. McAuliffe on 7/10/2018. (Herman, H)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 THERESA BROOKE, 11 Plaintiff, 12 v. 13 NARAYAN BHAGAT and RANJAN BHAGAT, 14 Defendants. 15 Case No.: 1:17-cv-01678-AWI-BAM FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION, WITH PREJUDICE, FOR FAILURE TO OBEY COURT ORDERS AND FAILURE TO PROSECUTE (Doc. 9) FOURTEEN-DAY DEADLINE 16 17 18 Plaintiff Theresa Brooke (“Plaintiff”) filed the instant action on December 13, 2017, alleging violations of Title II of the Americans with Disabilities Act (“ADA”) and various state 19 statutes against Defendants Narayan Bhagat & Ranjan Bhagat, co-trustees of the Narayan Bhagat 20 & Ranjan Bhagat Revocable Living Trust, March 1, 1995 dba Bakersfield Inn & Suites.1 21 On January 12, 2018, the Clerk of the Court entered default against Defendant Narayan 22 Bhagat. (Doc. 6.). Plaintiff, however, failed to file a motion for default judgment. On March 2, 23 2018, the Court ordered Plaintiff to either show cause in writing or file the motion for default 24 judgment by March 20, 2018. The Court advised Plaintiff that the failure to comply with the order 25 may result in the imposition of sanctions. (Doc. 9). 26 1 27 28 Plaintiff has not returned an executed service of summons for Ranjan Bhagat. Rule 4(m) of the Federal Rules of Civil Procedure states that if a Defendant is not served within 90 days after the complaint is filed, the Court—on motion or on its own after notice to the Plaintiff—must dismiss the action without prejudice against the Defendants. Fed. R. Civ. P. 4(m). 1 The deadline for Plaintiff to respond to the order to show cause has passed, and she has not 2 complied with the Court’s order. Accordingly, the Court will recommend dismissal of this action 3 with prejudice. 4 5 I. Failure to Prosecute and Failure to Obey a Court Order A. Legal Standards 6 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 7 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 8 within the inherent power of the Court.” District courts have the inherent power to control their 9 dockets and “[i]n the exercise of that power they may impose sanctions including, where 10 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court 11 may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure to 12 obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 13 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 14 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment 15 of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) (dismissal for 16 failure to comply with court order). 17 In determining whether to dismiss an action, the Court must consider several factors: (1) the 18 public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 19 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 20 their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 F.2d 1421, 21 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 22 B. Discussion 23 Here, Plaintiff has failed to prosecute this action, and she has been otherwise non-responsive 24 to the Court’s order directing her to move for default judgment. The Court cannot effectively 25 manage its docket if Plaintiff ceases litigating her case. Thus, the Court finds that both the first and 26 second factors weigh in favor of dismissal. 27 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 28 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 2 1 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 2 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 3 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose responsibility 4 it is to move a case toward disposition on the merits but whose conduct impedes progress in that 5 direction,” which is the case here. In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 6 1217, 1228 (9th Cir. 2006) (citation omitted). 7 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 8 sanctions satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 9 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s March 2, 2018 order expressly 10 warned Plaintiff that her failure to respond to the order to show cause or otherwise comply would 11 result in sanctions. (Doc. 9 at pp. 2). Thus, Plaintiff had adequate warning that dismissal could 12 result from her noncompliance. 13 Additionally, at this stage in the proceedings there is little available to the Court that would 14 constitute a satisfactory lesser sanction while protecting the Court from further unnecessary 15 expenditure of its scarce resources. Plaintiff has not filed a motion for default judgment or 16 responded to the Court, making monetary sanctions of little use, and the preclusion of evidence or 17 witnesses is likely to have no effect given that Plaintiff has ceased litigating her case. 18 II. 19 For the reasons explained above, the Court HEREBY RECOMMENDS that this action be 20 Conclusion and Recommendation dismissed for failure to obey a court order and failure to prosecute. 21 These Findings and Recommendation will be submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) 23 days after being served with these Findings and Recommendation, Plaintiff may file written 24 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 25 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 26 specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” 27 on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 28 F.2d 1391, 1394 (9th Cir. 1991)). 3 1 2 3 IT IS SO ORDERED. Dated: /s/ Barbara July 10, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4