(PS) Iegorova v. U.S. State Department, No. 2:2018cv01580 - Document 4 (E.D. Cal. 2018)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 7/30/18, RECOMMENDING that this action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b) and the Clerk be directed to vacate all dates and close this case. It is ORDERED that all pleading, discovery, and motion practice in this action are STAYED pending resolution of the findings and recommendations. Matter REFERRED to District Judge Morrison C. England, Jr.. Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. (Kastilahn, A)
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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 LIUDMYLA IEGOROVA, 12 Plaintiff, 13 14 15 v. No. 2:18-cv-01580-MCE-CKD (PS) ORDER AND FINDINGS AND RECOMMENDATIONS U.S. STATE DEPARTMENT, Defendant. 16 17 Plaintiff Liudmyla Iegorova, who proceeds without counsel, commenced this action on 18 May 30, 2018 and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 (ECF Nos. 1, 2.) The court granted this motion, but simultaneously dismissed the action because 20 the complaint did not state a cognizable claim, and failed to clearly invoke any laws or the 21 jurisdiction of this court. (See ECF No. 3.) 22 The court ordered plaintiff to file either a first amended complaint or a notice of voluntary 23 dismissal of the action within twenty-eight days of June 4, 2018. (Id. at 4.) Plaintiff was 24 specifically cautioned that failure to timely comply with the order may result in a 25 recommendation that the action be dismissed with prejudice pursuant to Federal Rule of Civil 26 Procedure 41(b). (Id.) 27 28 Although the applicable deadline has now passed, plaintiff has failed to file an amended complaint or notice of voluntary dismissal with the court. Therefore, the court recommends 1 1 2 dismissal at this juncture. Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to comply 3 with these Rules or with any order of the Court may be grounds for imposition by the Court of 4 any and all sanctions authorized by statute or Rule or within the inherent power of the Court.” 5 Moreover, Eastern District Local Rule 183(a) provides, in part: 6 7 8 9 10 11 12 Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. All obligations placed on “counsel” by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal, judgment by default, or any other sanction appropriate under these Rules. See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of procedure that govern other litigants”) (overruled on other grounds). A district court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to 13 Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or 14 15 16 fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. 17 Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action 18 19 20 21 pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground for dismissal”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal 22 Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with 23 any order of the court”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 24 1986) (per curiam) (stating that district courts have inherent power to control their dockets and 25 may impose sanctions including dismissal or default). 26 A court must weigh five factors in determining whether to dismiss a case for failure to 27 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 28 2 1 2 3 4 rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court 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. 5 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002); Ghazali, 46 6 F.3d at 53. The Ninth Circuit Court of Appeals has stated that “[t]hese factors are not a series of 7 conditions precedent before the judge can do anything, but a way for a district judge to think 8 about what to do.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 9 (9th Cir. 2006). 10 Although involuntary dismissal can be a harsh remedy, on balance the five relevant 11 factors weigh in favor of dismissal here. The first two Ferdik factors strongly support dismissal, 12 given that plaintiff’s failure to comply with the court’s order and failure to prosecute her case 13 have unreasonably delayed the progress of this litigation. The third Ferdik factor also favors 14 dismissal. Although the defendant has not yet appeared in the case, it has been named in a civil 15 action, and plaintiff’s failure to prosecute the case has hampered defendant’s ability to move this 16 case forward towards resolution. 17 Additionally, the fifth Ferdik factor, which considers the availability of less drastic 18 measures, also supports dismissal. As noted above, the court has already attempted less drastic 19 measures—allowing plaintiff an opportunity to amend her complaint—prior to recommending 20 dismissal. However, plaintiff failed to file an amended complaint or otherwise respond to the 21 court’s order. Furthermore, the court finds no suitable alternative to dismissal at this juncture. 22 Given plaintiff’s in forma pauperis status and her failure to state a cognizable claim, the 23 imposition of monetary sanctions would be futile, and the court is unable to frame any 24 meaningful issue or evidentiary sanctions based on the limited record before it. 25 Finally, the court finds that the fourth Ferdik factor, which addresses the public policy 26 favoring disposition of cases on the merits, does not materially counsel against dismissal. If 27 anything, a disposition on the merits has been hindered by plaintiff’s own failure to comply with 28 the court’s order and prosecute her case. In any event, the court finds that the fourth Ferdik factor 3 1 is outweighed by the other Ferdik factors. 2 Consequently, dismissal is appropriate. 3 Accordingly, IT IS HEREBY RECOMMENDED that: 4 1. The action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 5 41(b). 6 2. The Clerk of Court be directed to vacate all dates and close this case. 7 In light of these recommendations, IT IS ALSO HEREBY ORDERED that all pleading, 8 discovery, and motion practice in this action are STAYED pending resolution of the findings and 9 recommendations. With the exception of objections to the findings and recommendations and 10 any non-frivolous motions for emergency relief, the court will not entertain or respond to any 11 motions and other filings until the findings and recommendations are resolved. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 14 days after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 17 shall be served on all parties and filed with the court within fourteen (14) days after service of the 18 objections. The parties are advised that failure to file objections within the specified time may 19 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 20 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 21 Dated: July 30, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 14/ps.18-1580.iegorova.F&R 41b dismissal 28 4