Carrington, et al. v. First American Title Insurance Company, et al., No. 1:2018cv00203 - Document 11 (E.D. Cal. 2018)

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 4/26/2018. Referred to Chief Judge Lawrence J. O'Neill. 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 12 CHERYL CARRINGTON and JAMES CARRINGTON, Plaintiffs, 13 v. 14 15 FIRST AMERICAN TITLE INSURANCE COMPANY, et al., 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:18-cv-0203 -LJO-JLT FINDINGS AND RECOMMENDATIONS DISMISSING THE ACTION WITHOUT PREJUDICE FOR PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S ORDER AND FAILURE TO PROSECUTE 17 Cheryl Carrington and James Carrington contend the defendants are liable for unlawful actions 18 19 taken related to a foreclosure. However, after the Court relieved their counsel from their 20 representation, the Court ordered the plaintiffs to indicate whether they intended to proceed with this 21 action. (Doc. 10) Plaintiffs failed to comply and failed to take any other action to prosecute the matter. 22 Accordingly, the Court recommends that Plaintiffs’ complaint be DISMISSED without prejudice. 23 I. 24 Relevant Background Plaintiffs initiated this action by filing a complaint in Kern County Superior Court Case No. 25 BCV-18-100029 on January 5, 2018. (Doc. 1-1 at 2) Defendant Wells Fargo filed a Notice of Removal 26 pursuant to 28 U.S.C. §§ 1441(b) and 1332 on February 8, 2018, thereby initiating the matter in this 27 Court. (Doc. 1) 28 On February 14, 2018, Defendant filed a motion to dismiss. (Docs. 4, 8) Plaintiffs filed an 1 1 opposition to the motion on March 9, 2018. (Doc. 9) The same date, Mr. Artinian filed the motion to 2 withdraw as counsel. (Doc. 6) The Court held at hearing on the motion to withdraw on April 6, 2018. 3 Plaintiffs did not oppose the motion either in writing or at the hearing. (See Doc. 10 at 3) On April 6, 2018, the Court granted counsel’s motion to withdraw on April 6, 2018. (Doc. 10) 4 5 At that time, the Court ordered: “Plaintiffs SHALL notify the Court in writing of their intent to 6 proceed with this action no later than April 20, 2018.” (Id. at 3, emphasis in original) In addition, the 7 Court advised Plaintiffs that “failure to comply with this order will result in a recommendation that the 8 action be dismissed pursuant to Local Rule 110.” (Id., emphasis omitted). To date, Plaintiffs have not 9 responded to the Court’s order. 10 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 11 12 party to comply with . . . any order of the Court may be grounds for the imposition by the Court of any 13 and all sanctions . . . within the inherent power of the Court.” LR 110. “District courts have inherent 14 power to control their dockets,” and in exercising that power, a court may impose sanctions including 15 dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 16 1986). A court may dismiss an action for a party’s failure to prosecute an action or failure to obey a 17 court order. See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure 18 to comply with an order to file an amended complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 19 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 20 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 21 III. Discussion and Analysis To determine whether to dismiss an action for failure to prosecute and failure to obey a Court 22 23 order, the Court must consider several factors, including: “(1) the public’s interest in expeditious 24 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 25 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability 26 of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61; 27 Thomspon, 782 F.2d at 831. 28 /// 2 Public interest and the Court’s docket 1 A. 2 In the case at hand, the public’s interest in expeditiously resolving this litigation and the Court’s 3 interest in managing the docket weigh in favor of dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 4 983, 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always favors 5 dismissal”); Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent interest in 6 managing their dockets without being subject to noncompliant litigants). This Court cannot, and will 7 not hold, this case in abeyance based upon Plaintiffs’ failure to comply with the Court’s order and 8 failure to take action to continue prosecution in a timely manner. See Morris v. Morgan Stanley & Co., 9 942 F.2d 648, 652 (9th Cir. 1991) (a plaintiff has the burden “to move toward… disposition at a 10 reasonable pace, and to refrain from dilatory and evasive tactics”). Accordingly, these factors weigh in 11 favor of dismissal of the action. 12 B. Prejudice to Defendants 13 To determine whether the defendant suffers prejudice, the Court must “examine whether the 14 plaintiff’s actions impair the … ability to go to trial or threaten to interfere with the rightful decision of 15 the case.” Malone, 833 F.2d at 131 (citing Rubin v. Belo Broadcasting Corp., 769 F.2d 611, 618 (9th 16 Cir. 1985)). Significantly, a presumption of prejudiced arises when a plaintiff unreasonably delays the 17 prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). Here, Plaintiffs 18 have not taken any action to further prosecuting the action, despite being ordered by the Court to do so. 19 Therefore, this factor weighs in favor of dismissal. 20 C. 21 The Court “abuses its discretion if it imposes a sanction of dismissal without first considering 22 the impact of the sanction and the adequacy of less drastic sanctions.” United States v. Nat’l Medical 23 Enterprises, Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, a court’s warning to a party that the 24 failure to obey could result in dismissal satisfies the “consideration of alternatives” requirement. See 25 Malone, 833 F.2d at 133; Ferdik, 963 F.2d at 1262. As the Ninth Circuit explained, “a plaintiff can 26 hardly be surprised” by a sanction of dismissal “in response to willful violation of a pretrial order.” 27 Malone, 833 F.2d at 133. 28 Consideration of less drastic sanctions The Court warned Plaintiffs that they were obligated to file a notice whether they intended to 3 1 proceed in this action and that their “failure to comply with this order will result in a 2 recommendation that the action be dismissed pursuant to Local Rule 110.” (Doc. 10 at 3, 3 emphasis in original) Importantly, the Court need only warn a party once that the matter could be 4 dismissed for failure to comply to satisfy the requirements of Rule 41. Ferdik, 963 F.2d at 1262; see 5 also Titus v. Mercedes Benz of North America, 695 F.2d 746, 749 n.6 (3rd Cir. 1982) (identifying a 6 “warning” as an alternative sanction). Accordingly, the warning to Plaintiffs satisfied the requirement 7 that the Court consider lesser sanctions, and this factor weighs in favor of dismissal of the action. See 8 Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424; Titus, 695 F.2d at 749 n.6. D. 9 Public policy Given Plaintiffs’ failure to prosecute the action and failure to comply with the Court’s order, 10 11 the policy favoring disposition of cases on their merits is outweighed by the factors in favor of 12 dismissal. See Malone, 833 F.2d at 133, n.2 (explaining that although “the public policy favoring 13 disposition of cases on their merits . . . weighs against dismissal, it is not sufficient to outweigh the 14 other four factors”). 15 IV. Plaintiffs failed to comply with the Court’s order dated April 6, 2018 (Doc. 10) and thereby 16 17 Findings and Recommendations indicated they have abandoned the litigation. Based upon the foregoing, the Court RECOMMENDS: 18 1. This action be DISMISSED without prejudice; 19 2. Any remaining motions be terminated as MOOT; and 20 3. The Clerk of Court be DIRECTED to close the action. 21 These Findings and Recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local 23 Rules of Practice for the United States District Court, Eastern District of California. Within fourteen 24 days after being served with these Findings and Recommendations, any party may file written 25 objections. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 26 Recommendations.” 27 /// 28 /// 4 1 Plaintiffs are advised that failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); Wilkerson v. 3 Wheeler, 772 F.3d 834, 834 (9th Cir. 2014). 4 5 6 7 IT IS SO ORDERED. Dated: April 26, 2018 /s/ Jennifer L. Thurston 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 5