(PS) Protzel v. Alaw et al, No. 2:2015cv01199 - Document 8 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 9/25/2015 RECOMMENDING that this action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b) and 4(m) and Local Rules 110 and 183(a). Referred to Judge Morrison C. England, Jr.. Objections to F&R due within 14 days. (Zignago, K.)
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(PS) Protzel v. Alaw et al Doc. 8 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MONA PROTZEL, 12 13 14 No. 2:15-cv-01199-MCE-AC Plaintiff, v. FINDINGS & RECOMMENDATIONS ALAW, et al., 15 Defendants. 16 17 Plaintiff is proceeding in this action in pro per. On June 3, 2015, defendants removed this 18 matter from El Dorado Superior Court based on federal question jurisdiction. ECF No. 1. 19 Defendants then filed a motion to dismiss on June 10, 2015. ECF No. 3. On July 24, 2015, the 20 court ordered plaintiff to show cause within fourteen (14) days why she failed to timely file an 21 opposition, to avoid having her claims dismissed pursuant to Federal Rule of Civil Procedure 22 41(b) for failure to prosecute. ECF No. 7. Plaintiff has yet to respond to the court’s order to 23 show cause. 24 Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action 25 for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, failure to 26 comply with the court’s local rules, or failure to comply with the court’s orders. See, e.g., 27 Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act sua sponte 28 to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. Forest 1 Dockets.Justia.com 1 Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant 2 to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute or comply 3 with the rules of civil procedure or the court’s orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 4 (9th Cir. 1992) (“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss 5 an action for failure to comply with any order of the court.”); Pagtalunan v. Galaza, 291 F.3d 639, 6 642–43 (9th Cir. 2002) (affirming district court’s dismissal of case for failure to prosecute when 7 habeas petitioner failed to file a first amended petition). This court’s Local Rules are in accord. 8 See E.D. Local Rule 110 (“Failure of counsel or a party to comply with these Rules or with any 9 order of the Court may be grounds for imposition by the Court of any and all sanctions authorized 10 by statute or Rule or within the inherent power of the Court.”); E.D. Local Rule 183(a) (providing 11 that a pro se party’s failure to comply with the Federal Rules of Civil Procedure, the court’s Local 12 Rules, and other applicable law may support, among other things, dismissal of that party’s 13 action). 14 A court must weigh five factors in determining whether to dismiss a case for failure to 15 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 16 rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider: 17 18 19 (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. 20 Id. at 1260–61; accord Pagtalunan, 291 F.3d at 642–43; Ghazali v. Moran, 46 F.3d 52, 53 (9th 21 Cir. 1995), cert. denied, 516 U.S. 838 (1995). The Ninth Circuit Court of Appeals has stated that 22 “[t]hese factors are not a series of conditions precedent before the judge can do anything, but a 23 way for a district judge to think about what to do.” In re Phenylpropanolamine (PPA) Prods. 24 Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). 25 Although involuntary dismissal can be a harsh remedy, on balance the five relevant 26 factors weigh in favor of dismissal of this action. The first two factors strongly support dismissal 27 of this action. Plaintiff’s failure to file an opposition and respond to this court’s order strongly 28 suggests that she has abandoned this action or is not interested in seriously prosecuting it. See, 2 1 e.g., Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in 2 expeditious resolution of litigation always favors dismissal.”). Any further time spent by the 3 court on this case, which plaintiff has demonstrated a lack of any serious intention to pursue, will 4 consume scarce judicial resources and take away from other active cases. See Ferdik, 963 F.2d at 5 1261 (recognizing that district courts have inherent power to manage their dockets without being 6 subject to noncompliant litigants). 7 In addition, the third factor, which considers prejudice to defendants, should be given 8 some weight. See Ferdik, 963 F.2d at 1262. Defendants California Reconveyance Company, 9 JPMorgan Chase Bank, and Washington Mutual Bank have all appeared and attempted to defend 10 themselves in this action. Plaintiff; however, has not shown any interest in prosecuting it, 11 preventing defendants from resolving this case on the merits through unreasonable delay. 12 Unreasonable delay is presumed to be prejudicial. See, e.g., In re Phenylpropanolamine (PPA) 13 Prods. Liab. Litig., 460 F.3d at 1227. 14 The fifth factor, which considers the availability of less drastic measures, also supports 15 dismissal of this action. The court has already pursued remedies that are less drastic than a 16 recommendation of dismissal, including providing plaintiff with the opportunity to remedy her 17 failure to file an opposition. See Malone v. U.S. Postal Serv., 833 F.2d 128, 132 (9th Cir. 1987) 18 (“[E]xplicit discussion of alternatives is unnecessary if the district court actually tries alternatives 19 before employing the ultimate sanction of dismissal.”), cert. denied, 488 U.S. 819 (1988). Having 20 failed to receive a response from plaintiff, the court finds no suitable alternative to a 21 recommendation for dismissal of this action. 22 The court also recognizes the importance of giving due weight to the fourth factor, which 23 addresses the public policy favoring disposition of cases on the merits. However, for the reasons 24 set forth above, factors one, two, three, and five strongly support a recommendation of dismissal 25 of this action, and factor four does not materially counsel otherwise. Dismissal is proper “where 26 at least four factors support dismissal or where at least three factors ‘strongly’ support dismissal.” 27 Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations and quotation marks 28 omitted). Under the circumstances of this case, the other relevant factors outweigh the general 3 1 public policy favoring disposition of actions on their merits. See Ferdik, 963 F.2d at 1263. 2 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without 3 prejudice pursuant to Federal Rule of Civil Procedure 41(b) and 4(m) and Local Rules 110 and 4 183(a). 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 7 days after being served with these findings and recommendations, any party may file written 8 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 9 Findings and Recommendations.” Any reply to the objections shall be served and filed within 10 fourteen (14) days after service of the objections. The parties are advised that failure to file 11 objections within the specified time may waive the right to appeal the District Court’s order. 12 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 DATED: September 25, 2015 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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