Opinion
CV 22-811-FMO (E)
12-12-2022
KERRY ROBERTS, Plaintiff, v. GONZALEZ, Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Fernando M. Olguin, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Plaintiff, pro se, filed this action on February 3, 2022. Defendant filed a “Motion for Summary Judgment” (“the Motion”) on November 2, 2022.
By Minute Order filed November 2, 2022, the Court ordered Plaintiff to file opposition to the Motion within thirty (30) days of November 2, 2022. The Minute ordered cautioned Plaintiff that “[f]ailure to file timely opposition may result in dismissal of the action for failure to prosecute.” Nevertheless, Plaintiff failed to file opposition within the allotted time.
On December 7, 2022, Defendant filed a “Notice of Returned Mail.” This notice represents that Plaintiff's service copy of the Motion, which Defendant mailed to Plaintiff's address of record, was returned to Defendant on November 18, 2022, without having been delivered to Plaintiff.
DISCUSSION advise court of change in address warrants dismissal without prejudice); L.R. 41-6 (authorizing dismissal of an action fifteen days after the return of undelivered mail where a party proceeding pro se has failed to keep the court apprised of the pro se party's current address).
The Court has considered the factors recited in Ferdik v. Bonzelet, 963 F.2d 1258, 1260-62 (9th Cir. 1992), cert. denied, 506 U.S. 915 (1992) and has concluded that dismissal without prejudice is appropriate. In particular, any less drastic alternative would not be effective, given Plaintiff's evident failure to keep the Court apprised of his current address.
RECOMMENDATION
For all the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered dismissing the action without prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.