(PS) Rubino v. National Railroad Passenger Corp., No. 2:2023cv00122 - Document 38 (E.D. Cal. 2023)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 07/25/23 RECOMMENDING the 1 Complaint be dismissed, without prejudice and this action be closed. Referred to Judge Daniel J. Calabretta. Objections due within 14 days after being served with these findings and recommendations. (Licea Chavez, V)

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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 DEMAS RUBINO, 12 13 14 15 16 No. 2:23-cv-0122 DJC DB PS Plaintiff, v. ORDER AND NATIONAL RAILROAD PASSENGER CORPORATION, FINDINGS AND RECOMMENDATIONS Defendant, 17 18 Plaintiff Demas Rubino is proceeding in this action pro se. This matter was referred to the 19 undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On April 26, 20 2023, the undersigned issued an order setting this matter for a Status (Pretrial Scheduling) 21 Conference on June 16, 2023. (ECF No. 30.) Pursuant to that order plaintiff was to file a status 22 report on or before June 2, 2023. Plaintiff, however, failed to file a timely status report. 23 Accordingly, on June 13, 2023, the undersigned issued an order to show cause, ordering 24 plaintiff to show cause in writing within fourteen days as to why this action should not be 25 dismissed for lack of prosecution. (ECF No. 33.) The order also continued the Status (Pretrial 26 Scheduling) Conference to July 28, 2023, and ordered plaintiff to file a status report on or before 27 July 14, 2023. (Id. at 2.) Plaintiff was warned that the failure to timely comply with that order 28 could result in a recommendation that this case be dismissed. (Id.) On June 28, 2023, plaintiff 1 1 filed a document stating that plaintiff “just received my paper work on June 26, 2023,” and “I see 2 here I have until July 14, 2023 for a status report.” (ECF No. 26 at 1.) Nonetheless, the 3 time provided plaintiff has expired and plaintiff has not filed the required status report or shown 4 cause as to why this action should not be dismissed. 5 ANALYSIS 6 The factors to be weighed in determining whether to dismiss a case for lack of prosecution 7 are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need to 8 manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring 9 disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of 10 El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 11 1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that 12 should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d 13 at 1260. 14 Failure of a party to comply with the any order of the court “may be grounds for 15 imposition by the Court of any and all sanctions authorized by statute or Rule or within the 16 inherent power of the Court.” Local Rule 110. Any individual representing himself or herself 17 without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local 18 Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable 19 rules and law may be grounds for dismissal or any other sanction appropriate under the Local 20 Rules. Id. 21 Here, plaintiff has failed to respond to multiple orders of the court. Plaintiff was warned 22 that the failure to file a written response could result in a recommendation that this matter be 23 dismissed. In this regard, plaintiff’s lack of prosecution of this case renders the imposition of 24 monetary sanctions futile. Moreover, the public interest in expeditious resolution of litigation, the 25 court’s need to manage its docket, and the risk of prejudice to the defendant all support the 26 imposition of the sanction of dismissal. Only the public policy favoring disposition on the merits 27 counsels against dismissal. However, plaintiff’s failure to prosecute the action in any way makes 28 disposition on the merits an impossibility. The undersigned will therefore recommend that this 2 1 action be dismissed due to plaintiff’s failure to prosecute as well as plaintiff’s failure to comply 2 with the Court’s orders. See Fed. R. Civ. P. 41(b). 3 4 Accordingly, IT IS HEREBY ORDERED that the July 28, 2023 Status (Pretrial Scheduling) Conference is vacated. 5 Also, IT IS HEREBY RECOMMENDED that: 6 1. Plaintiff’s complaint filed July 6, 2022 (ECF No. 1) be dismissed without prejudice; 7 and 8 2. This action be closed. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 14 shall be served and filed within fourteen days after service of the objections. The parties are 15 advised that failure to file objections within the specified time may waive the right to appeal the 16 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: July 25, 2023 18 19 20 21 22 23 DLB:6 DB/orders/orders.pro se/rubino0122.dlop.f&rs 24 25 26 27 28 3

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