(PS) Bowman v. Valentine & Kebartas, Inc., No. 2:2014cv01563 - Document 17 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS, recommending action be dismissed and that Clerk be directed to vacate all dates and close this case, signed by Magistrate Judge Kendall J. Newman on 7/16/2015. These Findings and Recommendations are SUBMITTED to District Judge John A. Mendez. Within 14 days after being served with these F/Rs, any party may file written Objectios with Court and serve a copy on all parties. (Marciel, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONNA BOWMAN, 12 13 14 No. 2:14-cv-1563-JAM-KJN PS Plaintiff, v. FINDINGS AND RECOMMENDATIONS VALENTINE & KEBARTAS, INC., 15 16 Defendant. 17 18 Plaintiff, at that time represented by counsel, commenced this action on July 2, 2014. 19 (ECF No. 1.) However, on May 4, 2015, the district judge granted plaintiff’s counsel’s motion to 20 withdraw. (ECF No. 14.) In the motion to withdraw, plaintiff’s former counsel indicated that 21 plaintiff had not responded to any of his communications since at least December 2014. (ECF 22 No. 12.) Plaintiff’s former counsel provided a last-known address for plaintiff, which the Clerk 23 of Court has recorded in the court’s records. (Id.) Thereafter, on June 12, 2015, the case was 24 referred to the undersigned pursuant to Local Rule 302(c)(21). (ECF No. 15.) 25 Subsequently, on June 15, 2015, the court issued an order directing plaintiff to file a brief 26 statement indicating whether or not she intends to proceed with the action, and if so, whether she 27 needs a brief period of time to obtain new counsel. (ECF No. 16.) Plaintiff was ordered to 28 respond no later than July 2, 2015. (Id.) The court specifically cautioned plaintiff that failure to 1 1 timely respond to the order would be deemed to be plaintiff’s consent to dismissal of the action, 2 and would result in a recommendation of dismissal pursuant to Federal Rule of Civil Procedure 3 41(b). (Id.) 4 Although the July 2, 2015 deadline has now long passed, plaintiff failed to respond to the 5 court’s order; nor did plaintiff request an extension of time to do so. Accordingly, the court 6 recommends that the action be dismissed. 7 A court must weigh five factors in determining whether to dismiss a case for failure to 8 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 9 rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). Specifically, the court 10 11 12 13 must consider: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. 14 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002); Ghazali v. 15 Moran, 46 F.3d 52, 53 (9th Cir. 1995). The Ninth Circuit Court of Appeals has stated that 16 “[t]hese factors are not a series of conditions precedent before the judge can do anything, but a 17 way for a district judge to think about what to do.” In re Phenylpropanolamine (PPA) Prods. 18 Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). 19 In this case, the first two Ferdik factors strongly support dismissal, because plaintiff’s 20 failure to communicate with her former counsel and failure to now respond to the court’s orders 21 suggest that plaintiff is no longer interested in seriously and diligently pursuing this case. As for 22 the third Ferdik factor, although the defendant has not yet appeared, plaintiff’s former counsel 23 represented that he had engaged in settlement discussions with defendant, but that he had been 24 unable to relay information regarding settlement discussions to plaintiff. (See ECF No. 12.) 25 Therefore, at a minimum, plaintiff’s nonresponsiveness has prejudiced defendant’s ability to 26 pursue potential early resolution of the case. Additionally, concerning the fifth Ferdik factor, the 27 court has already attempted less drastic alternatives by providing plaintiff with a reasonable 28 period of time to state whether she intends to proceed with the action and whether she requires 2 1 some additional time to obtain new counsel. The court also clearly cautioned plaintiff regarding 2 the potential consequences for failure to respond to the court’s order. Nevertheless, plaintiff 3 ignored the court’s order and did not even request an extension of time to comply. Finally, even 4 though the court prefers, consistent with the fourth Ferdik factor, to resolve cases on their merits, 5 plaintiff’s own conduct precludes a resolution on the merits. In any event, the fourth Ferdik 6 factor is outweighed by the other Ferdik factors. 7 Accordingly, for the reasons outlined above, IT IS HEREBY RECOMMENDED that: 8 1. The action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). 9 2. The Clerk of Court be directed to vacate all dates and close this case. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 12 days after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 15 shall be served on all parties and filed with the court within fourteen (14) days after service of the 16 objections. The parties are advised that failure to file objections within the specified time may 17 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 18 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 19 20 IT IS SO RECOMMENDED. Dated: July 16, 2015 21 22 23 24 25 26 27 28 3

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