(PS) 3AI Properties LLC v. Abbett et al, No. 2:2018cv02345 - Document 38 (E.D. Cal. 2019)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 7/23/2019 RECOMMENDING this action be dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and orders. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 3A1 PROPERTIES LLC, 12 13 14 15 No. 2:18-CV-2345-KJM-DMC Plaintiff, v. FINDINGS AND RECOMMENDATIONS DAUN ABBETT, et al., Defendants. 16 17 Plaintiff, which is proceeding with retained counsel, brings this civil action. On 18 May 13, 2019, the court directed plaintiff to file a first amended complaint within 30 days. 19 Plaintiff was warned that failure to comply may result in dismissal of this action for lack of 20 prosecution and failure to comply with court rules and orders. See Local Rule 110. More than 30 21 days have elapsed and plaintiff has not complied. 22 The court must weigh five factors before imposing the harsh sanction of dismissal. 23 See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal 24 Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in 25 expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of 26 prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits; 27 and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 28 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate 1 1 sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone, 2 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where 3 there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 4 1986). Dismissal has also been held to be an appropriate sanction for failure to comply with an 5 order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 6 1992). 7 Having considered these factors, and in light of plaintiff’s failure to file a first 8 amended complaint as directed, the court finds that dismissal of this action is appropriate. 9 Dismissal is also appropriate because, absent a first amended complaint filed by retained counsel, 10 this action proceeds on an improper pro se complaint filed on behalf of a business entity. See 11 Local Rule 183(a). 12 13 Based on the foregoing, the undersigned recommends that this action be dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and 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 14 days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court. Responses to objections shall be filed within 14 days after service of 18 objections. Failure to file objections within the specified time may waive the right to appeal. See 19 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 Dated: July 23, 2019 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2

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