Escalante v. Fedex Corporate Services, Inc., No. 1:2018cv00560 - Document 17 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS regarding dismissal of action for the failure to obey court orders and failure to prosecute. Matter referred to Judge O'Neill. Objections to F&R due within fourteen (14) days after being served with these Findings and Recommendations; signed by Magistrate Judge Barbara A. McAuliffe on 9/10/2018. (Timken, A)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MARK A. ESCALANTE, 10 11 12 Plaintiff, v. Case No. 1:18-cv-00560-LJO-BAM FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR THE FAILURE TO OBEY COURT ORDERS AND FAILURE TO PROSECUTE FEDEX CORPORATE SERVICES, INC., (Doc. Nos. 10, 16) 13 Defendant. FOURTEEN (14) DAY DEADLINE 14 15 16 I. 17 Plaintiff Mark A. Escalante (“Plaintiff”), proceeding pro se, initiated this action in the 18 Stanislaus County Superior Court, and the matter was removed to this Court on April 25, 2018. 19 (Doc. No. 1.) Civil new case documents were issued the same day, and the Court set a Mandatory 20 Scheduling Conference for August 21, 2018. (Doc. No. 7.) The matter was reassigned to the 21 undersigned Magistrate Judge and the Mandatory Scheduling Conference was advanced to August 22 15, 2018. (Doc. Nos. 9, 10.) Background 23 On August 15, 2018, the Court convened the Mandatory Scheduling Conference. The 24 conference could not be held because Plaintiff failed to appear. Plaintiff also reportedly failed to 25 participate in the preparation of the Joint Scheduling Report. (Doc. Nos. 14, 15.) As a result, on 26 August 15, 2018, the undersigned issued an order for Plaintiff to show cause in writing no later 27 than August 29, 2018, why he has failed to participate in these proceedings and obey the orders of 28 1 1 this Court and why sanctions, up to and including terminating sanctions, should not be imposed. 2 Plaintiff was admonished that the failure to timely respond may result in the imposition of 3 sanctions, including dismissal of this action. (Doc. No. 16.) The deadline for Plaintiff to respond 4 to the Court’s order to show cause has passed, and Plaintiff has neither complied with the show 5 cause order or otherwise responded to the Court. 6 II. Discussion 7 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 8 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 9 within the inherent power of the Court.” District courts have the inherent power to control their 10 dockets and “[i]n the exercise of that power they may impose sanctions including, where 11 appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 12 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure 13 to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 14 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 15 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 16 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 17 (dismissal for failure to comply with court order). 18 In determining whether to dismiss an action, the Court must consider several factors: (1) the 19 public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 20 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 21 their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 F.2d 1421, 22 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 23 Here, this action has been pending since April 2018, and Plaintiff has failed to appear or 24 participate in the prosecution of this action. The Court cannot hold this case indefinitely in 25 abeyance awaiting Plaintiff’s compliance with the Court’s orders. Thus, the Court finds that both 26 the first and 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 West, 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) Prods. Liab. Litig., 460 F.3d 6 1217, 1228 (9th Cir. 2006) (citation omitted). 7 Finally, a court’s warning to a party that failure to obey the court’s order will result in 8 dismissal 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 show cause order of August 10 15, 2018, expressly warned Plaintiff that the failure to comply with that order might result in 11 sanctions, including dismissal of this action. (Doc. No. 16.) Thus, Plaintiff had adequate warning 12 that dismissal could result from noncompliance. 13 Additionally, at this stage in the proceedings there is little available to the Court which 14 would constitute a satisfactory lesser sanction while protecting the Court from further unnecessary 15 expenditure of its scarce resources. Monetary sanctions and the preclusion of evidence or witnesses 16 are of little use and likely to have no effect given that Plaintiff has ceased litigating this case and 17 has stopped responding to the Court’s orders. 18 III. Conclusion and Recommendation 19 Accordingly, for the reasons explained above, it is HEREBY RECOMMENDED that this 20 action be dismissed based on Plaintiff’s failure to obey court orders and failure to prosecute this 21 action. 22 These Findings and Recommendations will be submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 24 (14) days after being served with these Findings and Recommendations, the parties may file written 25 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 26 /// 27 /// 28 /// 3 1 Findings and Recommendations.” The parties are advised that failure to file objections within the 2 specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” 3 on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 4 F.2d 1391, 1394 (9th Cir. 1991)). 5 6 7 8 IT IS SO ORDERED. Dated: /s/ Barbara September 10, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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