Opinion
No. MISC S-02-0035 WBS GGH PS
May 10, 2002
FINDINGS AND RECOMMENDATIONS
Respondent's motion to dismiss is scheduled for hearing on May 16, 2002. Petitioner, attempting to proceed pro se, failed to file opposition, although court records reflect petitioner was properly served with notice of the hearing date at petitioner's address of record. The court will determine this matter on the record without a hearing.
Local Rule 78-230(c) provides that opposition to a motion must be filed fourteen days preceding the noticed hearing date. The Rule further provides that "[n]o party will be entitled to be heard in opposition to a motion at oral arguments if written opposition to the motion has not been timely filed by that party." Local Rule 11-110 provides that failure to comply with the Local Rules "may be grounds for imposition of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." Finally, Local Rule 83-183, governing persons appearing in propria persona, provides that persons representing themselves are bound by the Federal Rules and the Local Rules and failure to comply therewith may be ground for dismissal, judgment by default, or other appropriate sanction.
"Failure to follow a district court's local rules is a proper ground for dismissal." Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). The court should 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 sanctions. Pro se litigants are bound by the rules of procedure, even though pleadings are liberally construed in their favor. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir. 1986).
In determining to recommend that this action be dismissed, the court has considered the factors set forth in Ghazali. "The first two of these factors favor the imposition of sanctions in most cases, while the fourth cuts against a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions." Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990). Defendants are prejudiced by bearing the costs of bringing motions in litigation in which petitioner demonstrates no intention to proceed. Moreover, delay is nearly always prejudicial. Petitioner having failed to participate in this action, there appears to be no suitable alternative less drastic sanction to dismissal.
Moreover, in any event, the record reflects that petitioner is attempting to be represented by a non-attorney "agent." As respondent argues, while a non-attorney may represent him or herself in a lawsuit, he or she has no authority to appear as an attorney for others. See Rowland v. California Men's Colony, 506 U.S. 194, 202, 113 S.Ct. 716, 721 (1993) (unincorporated association must appear through counsel); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987) (dismissing complaint signed only by non-lawyer trustee); Church of the New Testament v. United States, 783 F.2d 771, 772 (9th Cir. 1987) (church must appear in court through a licensed attorney); Iannoccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998) (estate's action cannot be conducted pro se; Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997) (same)). The action cannot proceed because a non-lawyer purports to bring the action on behalf of an unincorporated association.
Accordingly, IT IS RECOMMENDED that respondent's motion to dismiss be GRANTED and this action be dismissed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within ten (10) 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. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten (10) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Y1st, 951 F.2d 1153 (9th Cir. 1991).