Opinion
No. 2:10-cv-01823 KJM KJN PS.
April 28, 2011
FINDINGS AND RECOMMENDATIONS
On April 6, 2011, the undersigned entered proposed findings and recommendations that recommended the dismissal of 18 defendants from this action with prejudice. (Order, Findings Recommendations, and Order to Show Cause, Apr. 6, 2011, Dkt. No. 43.) In entering those proposed findings and recommendations, the undersigned also ordered plaintiff to show cause why his claims against the remaining defendants who have not appeared in this action — defendants Kelley Bently, "Sargent Foxworthy," Jeff Neves, Barbara Newman, Carol Stowell, and Tania Urgin — should not be dismissed pursuant to Federal Rules of Civil Procedure 4(m) and 41(b). (Id. at 15-16.) Plaintiff was required to show such cause, in writing, no later than April 15, 2011. (Id. at 17.) Plaintiff failed to file a response to the order to show cause. Accordingly, the undersigned recommends that plaintiff's claims against defendants Bently, Foxforthy, Neves, Newman, Stowell, and Urgin be dismissed with prejudice.
These proposed findings and recommendations are pending, and plaintiff failed to file objections thereto.
These proposed findings and recommendations are occasionally referred to as the "OSC" herein.
Plaintiff filed documents with the court on April 13, 2011, April 18, 2011, and April 26, 2011. (Dkt. Nos. 45-49.) None of these filings remotely constitutes a response to the OSC.
I. Dismissal Without Prejudice Pursuant to Federal Rule of Civil Procedure 4(m)
On October 6, 2010, plaintiff filed what the court deemed to be a First Amended Complaint (Dkt. No. 11). (See Order, Oct. 14, 2010, Dkt. No. 12.) The court issued a summons in regards to the First Amended Complaint on October 14, 2010. (Summons In A Civil Case, Oct. 14, 2010, Dkt. No. 13.) This summons included as defendants the following individuals: Kelley Bently, "Sargent Foxworthy," Jeff Neves, Barbara Newman, Carol Stowell, and Tania Urgin. As noted in the OSC, the court's docket does not reflect with any certainty that plaintiff ever served these defendants with the original summons and the original complaint, or the First Amended Complaint and related summons. Accordingly, the undersigned provided plaintiff with notice and an opportunity, in the form of a response to the OSC, to demonstrate either: (1) that he properly served these defendants, or (2) good cause for the failure to serve these defendants. Again, the court's docket reflects that plaintiff did not file a response to the OSC.
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.
Over 120 days have passed since plaintiff filed the First Amended Complaint and since the court issued the summons pertaining to the First Amended Complaint. Furthermore, plaintiff failed to show good cause for his failure to serve defendants Bently, Foxworthy, Neves, Newman, Stowell, and Urgin, even after being given notice of the potential dismissal pursuant to Rule 4(m) and an opportunity to show good cause. Accordingly, the undersigned recommends that plaintiff's claims against defendants Bently, Foxworthy, Neves, Newman, Stowell, and Urgin be dismissed. Dismissal pursuant to Rule 4(m) would be without prejudice.
II. Dismissal With Prejudice Pursuant to Federal Rule of Civil Procedure 41(b)
The undersigned also recommends the dismissal of plaintiff's claims against defendants Bently, Foxworthy, Neves, Newman, Stowell, and Urgin with prejudice, pursuant to Federal Rule of Civil Procedure 41(b). Such dismissal is warranted in light of plaintiff's failure 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. Rather than comply with the applicable procedural rules and this court's orders, plaintiff has consistently flouted them. For example, plaintiff filed several documents with this court that: (1) identify the United States District Court, Eastern District of California in the caption, and (2) purport to be orders or writs of this court signed by "Joseph-Edward: Marty" as "Judge, Bank, Banker and Postmaster." (See Order, Apr. 7, 2011, Dkt. No. 44;see also Dkt. Nos. 36-39, 41-42, 45.)
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 from the date the complaint was filed. (See Order Setting Status Conference ¶ 1, Dkt. No. 5.)
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 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 his claims against these defendants or is not interested in seriously prosecuting those claims. 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). Indeed, the court has devoted many hours to dealing with plaintiff's numerous, procedurally improper filings, e.g., the order and writs entered under plaintiff's own name as "Judge, Bank, Banker and Postmaster."
In addition, the third factor, which considers the risk of prejudice to a defendant, favors dismissal. Defendants Bently, Foxworthy, Neves, Newman, Stowell, and Urgin have been sued by a plaintiff who has demonstrated no desire to pursue his claims against them, or at least to pursue those claims in a serious and procedurally proper manner. It is prejudicial to these defendants to allow plaintiff's claims to linger against them.
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 repeatedly warned plaintiff in very clear terms that failure to comply with the court's orders would result in a recommendation of dismissal with prejudice. (Order, Feb. 1, 2011, at 2-3, Dkt. No. 25; Order, Findings Recommendations, and Order to Show Cause, Apr. 6, 2011, at 16; Order, Apr. 7, 2011, at 1-2.) 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 the claims alleged against the above-referenced defendants.
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 evidences his lack of desire for the resolution of his claims on the merits.
III. CONCLUSION
For the reasons stated above, IT IS HEREBY RECOMMENDED that plaintiff's claims against defendants Kelley Bently, "Sargent Foxworthy," Jeff Neves, Barbara Newman, Carol Stowell, and Tania Urgin be dismissed with prejudice.
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 27, 2011