Opinion
No. 2:10-cv-00404 MCE KJN PS.
April 27, 2011
FINDINGS AND RECOMMENDATIONS
On March 7, 2011, the undersigned entered an order that required plaintiff to show cause, on or before March 14, 2011, why his claims against the remaining defendants in this action should not be dismissed pursuant to Federal Rules of Civil Procedure 4(m) and 41(b). (See Order to Show Cause ("OSC"), Mar. 7, 2011, Dkt. No. 24.) Plaintiff failed to file a response to the OSC. Accordingly, the undersigned recommends that plaintiff's claims against defendants Tammy Haas, Randall Naiman, and Minton Hometown Properties, Inc. ("Minton") be dismissed with prejudice and that this case be closed.
I. BACKGROUND
Plaintiff filed this action on September 8, 2009, naming several defendants. (Compl., Dkt. No. 1.) Pursuant Federal Rule of Civil Procedure 4(m) and this court's Order Setting Status Conference, plaintiff was obligated to serve all defendants with process within 120 days of February 17, 2010. (See Order Setting Status Conference ¶ 1, Dkt. No. 9.)
On January 27, 2010, the United States District Court for the District of Columbia transferred this action to this court. (Order, Jan. 27, 2010, Dkt. No. 7.)
On February 1, 2011, the court granted a motion to dismiss filed by defendants JP Morgan Chase, N.A. and California Reconveyance Company and dismissed those defendants from this action with prejudice. (See Order, Feb. 1, 2011, Dkt. No. 23.) The defendants that remain in this action are Tammy Haas, Randall Naiman, and Minton. However, as noted in the OSC, the court's docket does not reflect with any certainty that plaintiff served Haas, Naiman, or Minton with process in this case.
The court's docket reflects that Naiman has not appeared in this action. Although plaintiff previously filed an unsigned document entitled "Notice of Proofs of Service," which appends several ambiguous certificates of service, plaintiff has taken no action to clarify whether defendants Naiman, Haas, or Minton were ever properly served. On July 7, 2010, Haas and Minton appeared through counsel and filed a status report that asserts that neither defendant has been served with the complaint or summons. (See Status Report, Dkt. No. 13.)
As a result, the undersigned entered the OSC referenced above. The OSC conveyed that in light of the apparent failure to serve certain defendants, the undersigned was inclined to recommend the dismissal of the claims against Haas, Naiman, and Minton pursuant to Federal Rule of Civil Procedure 4(m). (OSC at 1-2.) Additionally, the undersigned expressed a further inclination to recommend the dismissal of the claims against Haas, Naiman, and Minton with prejudice pursuant to Federal Rule of Civil Procedure 41(b) because of plaintiff's "failure to prosecute, comply with the Federal Rules of Civil Procedure, and the court's Order Setting Status Conference." (Id. at 2-3.) The undersigned ordered plaintiff to "show cause, in writing, no later than March 14, 2011, why his claims against defendants Tammy Haas, Randall Naiman, and Minton Hometown Properties, Inc. should not be dismissed with prejudice pursuant to Federal Rules of Civil Procedure 4(m) and 41(b)." (Id. at 3.) The undersigned further admonished plaintiff that "[f]ailure to file the required writing within the time permitted shall constitute plaintiff's consent to the dismissal of his case with prejudice." (Id.)
The court previously warned plaintiff that similar failures would result in a recommendation that his case be dismissed. (See Order to Show Cause, Aug. 24, 2010, Dkt. No. 16.)
Plaintiff failed to file any response to the OSC.
II. DISCUSSION
A. Dismissal Pursuant to Federal Rule of Civil Procedure 4(m)
Plaintiff's claims against Haas, Naiman, and Minton are subject to dismissal pursuant to Rule 4(m) because the time to serve these defendants expired long ago. In relevant part, Federal Rule of Civil Procedure 4(m) provides:
(m) Time Limit for Service. If a defendant is not served within 120 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Well over 120 days have passed since the complaint was filed in this court. Absent good cause shown by plaintiff, the court must dismiss plaintiff's claims against Haas, Naiman, and Minton pursuant to Rule 4(m).
Consistent with Rule 4(m), the undersigned provided plaintiff with: (1) notice of the court's inclination to dismiss his claims pursuant to Rule 4(m); and (2) an opportunity to show good cause for the failure to serve Haas, Naiman, and Minton. (OSC at 2-3.) Plaintiff filed no response to the OSC and, accordingly, the undersigned recommends that plaintiff's claims against Haas, Naiman, and Minton be dismissed. Dismissal pursuant to Rule 4(m) would be without prejudice.
B. Dismissal Pursuant to Federal Rule of Civil Procedure 41(b)
Plaintiff's claims against Haas, Naiman, and Minton are also subject to dismissal with prejudice pursuant to Rule 41(b) as a result of plaintiff's failures to: prosecute his action, comply with the Federal Rules of Civil Procedure, comply with the court's Order Setting Status Conference, and respond to the OSC. Indeed, by failing to file a response to the OSC, plaintiff consented to the dismissal of his case with prejudice. (See OSC at 3.)
Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, failure to comply with the court's local rules, or failure to comply with the court's orders. See, e.g., 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. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action 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); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) ("Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court."), cert. denied, 506 U.S. 915 (1992); Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002) (affirming district court's dismissal of case for failure to prosecute when habeas petitioner failed to file a first amended petition), cert. denied, 538 U.S. 909 (2003). This court's Local Rules are in accord. See E. Dist. Local Rule 110 ("Failure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court."); E. Dist. Local Rule 183(a) (providing that a pro se party's failure to comply with the Federal Rules of Civil Procedure, the court's Local Rules, and other applicable law may support, among other things, dismissal of that party's action).
Rule 41(b) provides, in part: " (b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." Fed.R.Civ.P. 41(b).
A court must weigh five factors in determining whether to dismiss a case for failure to prosecute, failure to comply with a court order, or failure to comply with a district court's local 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.Id. at 1260-61; accord Pagtalunan, 291 F.3d at 642-43; Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995), cert. denied, 516 U.S. 838 (1995). The Ninth Circuit Court of Appeals has stated that "[t]hese factors are not a series of conditions precedent before the judge can do anything, but a way for a district judge to think about what to do." In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006).
Although involuntary dismissal can be a harsh remedy, the five relevant factors weigh in favor of dismissal of this action. Plaintiff's failure to serve the remaining parties in this action with process and respond to the OSC, despite clear warnings of the consequences for such failures, strongly suggests that plaintiff has abandoned this action or is not interested in seriously prosecuting it. See, e.g., Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) ("The public's interest in expeditious resolution of litigation always favors dismissal."). Any further time spent by the court on this case, which plaintiff has demonstrated a lack of any serious intention to pursue, will consume scarce judicial resources and take away from other active cases. See Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent power to manage their dockets without being subject to noncompliant litigants).
In addition, the third factor, which considers the risk of prejudice to a defendant, favors dismissal. Haas, Naiman, and Minton have been sued by a plaintiff who has demonstrated no desire to pursue his claims against them. It is prejudicial to these defendants to allow plaintiff's claims to linger against them in perpetuity.
The fifth factor, which considers the availability of less drastic measures, also supports dismissal of this action. As noted above, the court has actually pursued remedies that are less drastic than a recommendation of dismissal. See Malone v. U.S. Postal Serv., 833 F.2d 128, 132 (9th Cir. 1987) ("[E]xplicit discussion of alternatives is unnecessary if the district court actually tries alternatives before employing the ultimate sanction of dismissal."), cert. denied, Malone v. Frank, 488 U.S. 819 (1988). The court provided plaintiff with notice of its intent to dismiss his case absent a showing of good cause for his failure to serve the remaining parties and his failure to comply with the court's Order Setting Status Conference. The court advised plaintiff of the requirements of the Federal Rules of Civil Procedure and the court's orders, and further advised plaintiff that he was required to comply with the rules of procedure and the court's orders even though he is proceeding without counsel. It also warned plaintiff in very clear terms that failure to comply with the court's orders would result in a recommendation of dismissal with prejudice. Warning a plaintiff that failure to take steps towards resolution of his or her action on the merits will result in dismissal satisfies the requirement that the court consider the alternatives. See, e.g.,Ferdik, 963 F.2d at 1262 ("[O]ur decisions also suggest that a district court's warning to a party that his failure to obey the court's order will result in dismissal can satisfy the 'consideration of alternatives' requirement.") (citing Malone, 833 F.2d at 132-33). At this juncture, the court finds no suitable alternative to a recommendation for dismissal of this action.
The court also recognizes the importance of giving due weight to the fourth factor, which addresses the public policy favoring disposition of cases on the merits. However, for the reasons set forth above, factors one, two, three, and five strongly support a recommendation of dismissal of this action, and factor four does not materially counsel otherwise. Dismissal is proper "where at least four factors support dismissal or where at least three factors 'strongly' support dismissal." Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations and quotation marks omitted). Under the circumstances of this case, the other relevant factors outweigh the general public policy favoring disposition of actions on their merits.See Ferdik, 963 F.2d at 1263. Additionally, plaintiff's non-responsiveness and inaction evidences his lack of desire for the resolution of his case on the merits.
III. CONCLUSION
For the foregoing reasons, IT IS HEREBY RECOMMENDED that:
1. Plaintiff's claims against defendants Tammy Haas, Randall Naiman, and Minton Hometown Properties, Inc. ("Minton") be dismissed with prejudice.
2. This case be closed and all dates vacated.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen 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. Id.; see also E. Dist. Local Rule 304(b). Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed with the court and served on all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d). Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).
IT IS SO RECOMMENDED.
DATED: April 26, 2011