Opinion
2:19-cv-00326-JAM-JDP (PS)
12-10-2021
MOTECUZOMA P. SANCHEZ, Plaintiff, v. MICHAEL TUBBS, Defendant.
FINDINGS AND RECOMMENDATIONS THAT THIS CASE BE DISMISSED FOR PLAINTIFF'S FAILURES TO PROSECUTE AND TO COMPLY WITH COURT ORDERS
OBJECTIONS DUE WITHIN 14 DAYS
JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE
This matter is before the court because of plaintiff's repeated failures to prosecute and comply with court orders. On September 29, 2020, the then-assigned magistrate judge recommended dismissal based on plaintiff's failures to prosecute and to comply with court orders. ECF No. 4. On September 30, 2020, plaintiff responded to the court's screening order, ECF No. 5, and the court gave plaintiff another opportunity to prosecute this case, ECF No. 7. On October 16, 2020, the court issued summonses, but plaintiff failed to return them. ECF No. 10. The court converted the April 1, 2021 scheduling conference to a status conference, ECF No. 11, and plaintiff failed to appear. ECF No. 12. On April 5, 2021, the court ordered plaintiff to show cause why this case should not be dismissed based on plaintiff's failures to comply with court orders and to prosecute this case. ECF No. 13. Plaintiff has not responded to the court's order to show cause, and the time to do so has now passed.
To manage its docket effectively, the court imposes deadlines on litigants and requires that those deadlines be met. The court may dismiss a case for plaintiff's failure to prosecute or failure to comply with a court order. See Fed. R. Civ. P. 41(b); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005). Involuntary dismissal is a harsh penalty, but a district court has a duty to administer justice expeditiously and avoid needless burden for the parties. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Fed.R.Civ.P. 1.
In considering whether to dismiss the case for failure to prosecute, a court ordinarily considers five factors: “(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.” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986)). These heuristic factors merely guide the court's inquiry; they are not conditions precedent for dismissal. See In re Phenylpropanolamine (PPA) Products Liability Litig., 460 F.3d 1217, 1226 (9th Cir. 2006).
“The public's interest in expeditious resolution of litigation always favors dismissal.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this factor weighs in favor of dismissal.
Turning to the risk of prejudice, pendency of a lawsuit, on its own, is not sufficiently prejudicial to warrant dismissal. Id. (citing Yourish, 191 F.3d at 991). However, delay inherently increases the risk that witnesses' memories will fade and evidence will become stale, id. at 643, and it is plaintiff's failure to prosecute this case that is causing delay. Therefore, the third factor weighs in favor of dismissal.
As for the availability of lesser sanctions, at this stage in the proceedings there is little available to the court that would constitute a satisfactory lesser sanction while protecting the court from further unnecessary expenditure of its scarce resources. Monetary sanctions are of little use, considering plaintiffs repeated violations of court orders, and the preclusion of evidence or witnesses is not available. While dismissal is a harsh sanction, no lesser sanction is available.
Finally, because public policy favors disposition on the merits, this factor weighs against dismissal. Id. After weighing the factors, including the court's need to manage its docket, the court finds that dismissal is appropriate.
Accordingly, I recommend that the case be dismissed without prejudice for plaintiffs failures to prosecute and to comply with court orders.
I submit these findings and recommendations to the U.S. district judge presiding over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the service of the findings and recommendations, the parties may file written objections to the findings and recommendations with the court and serve a copy on all parties. The document containing the objections must be captioned “Objections to Magistrate Judge's Findings and Recommendations.” The presiding district judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C).
IT IS SO ORDERED.