Hedrick v. The County of Trinity et al, No. 2:2009cv01797 - Document 7 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 8/18/09 RECOMMENDING that this action be dismissed, w/out prejudice, for lack of prosecution and failure to comply w/ the court rules and orders. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due w/in 20 days. (Yin, K)

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Hedrick v. The County of Trinity et al Doc. 7 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 GEORGETTE HEDRICK, 9 10 11 12 Plaintiff, vs. FINDINGS AND RECOMMENDATIONS THE COUNTY OF TRINITY, et al., Defendants. 13 14 No. CIV S-09-1797-GEB-CMK / Plaintiff, who is proceeding with retained counsel, brings this civil action. On 15 July 6, 2009, the court issued an order determining that service of the complaint is appropriate. 16 That order required plaintiff to submit to the United States Marshal, within 15 days of the date of 17 service of the order, a completed summons and copies of the complaint, and file a statement with 18 the court within 20 days that said documents have been submitted. Plaintiff was warned that 19 failure to comply may result in dismissal of this action for lack of prosecution and failure to 20 comply with court rules and orders. See Local Rule 11-110. More than 20 days have elapsed 21 and plaintiff has not complied. 22 The court must weigh five factors before imposing the harsh sanction of 23 dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. 24 U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's 25 interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) 26 the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on 1 Dockets.Justia.com 1 their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 2 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an 3 appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor. 4 See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is 5 appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 6 1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to 7 comply with an order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 8 1260-61 (9th Cir. 1992). 9 10 Having considered these factors, and in light of plaintiff’s failure to prosecute this case as directed, the court finds that dismissal of this action is appropriate. 11 Based on the foregoing, the undersigned recommends that this action be 12 dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and 13 orders. 14 These findings and recommendations are submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court. The document should be captioned “Objections to Magistrate Judge's 18 Findings and Recommendations.” Failure to file objections within the specified time may waive 19 the right to appeal. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 22 23 DATED: August 18, 2009 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 24 25 26 2

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