Rosenblum v. Ellis, et al

Filing 115

FINDINGS and RECOMMENDATIONS to Dismiss Case, With Prejudice, for Failure to Obey a Court Order and Failure to Prosecute, signed by Magistrate Judge Gary S. Austin on 5/21/2012, referred to Judge O'Neill. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PHILLIP JON ROSENBLUM,

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Plaintiff,

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vs.

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C/O ELLIS, et al.,

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Defendants.
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1:05-cv-01473-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS TO
DISMISS CASE, WITH PREJUDICE, FOR
FAILURE TO OBEY A COURT ORDER AND
FAILURE TO PROSECUTE
(Doc. 112.)
OBJECTIONS, IF ANY, DUE IN THIRTY
DAYS

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On April 9, 2012, the Court issued an order requiring Plaintiff to file a response to defendant

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Ellis's ("Defendant") motion for summary judgment, within thirty days. (Doc. 112.) The thirty day

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period has now expired, and Plaintiff has not filed a response to the motion for summary judgment, or

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otherwise responded to the Court's order.

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In determining whether to dismiss this action for failure to comply with the directives set forth

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in its order, “the Court must weigh the following factors: (1) the public’s interest in expeditious

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resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to

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defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring

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disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

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“‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” id.

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(quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the action has

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been pending for more than six years. Plaintiff's failure to respond to the Court's order may reflect

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Plaintiff's disinterest in prosecuting this case. In such an instance, the Court cannot continue to expend

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its scarce resources assisting a litigant who will not help himself by defending his lawsuit against

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summary judgment. Thus, both the first and second factors weigh in favor of dismissal.

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Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and of

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itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the risk

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that witnesses’ memories will fade and evidence will become stale,” id., and it is Plaintiff's failure to

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respond to Defendant's motion for summary judgment. Therefore, the third factor weighs in favor of

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dismissal.

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As for the availability of lesser sanctions, at this stage in the proceedings there is little available

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to the Court which would constitute a satisfactory lesser sanction while protecting the Court from further

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unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this action,

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making monetary sanctions of little use, and given the stage of these proceedings, the preclusion of

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evidence or witnesses is not available. The dismissal being considered in this case is with prejudice,

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which is the harshest possible sanction. However, the Court finds this sanction appropriate in light of

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the fact that five months have passed since Defendant filed the motion for summary judgment, and

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Plaintiff has yet to file an opposition. Moreover, Plaintiff was forewarned in the Court's order of April

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9, 2012 that the Court would recommend dismissal of this action, with prejudice, if he failed to defend

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against the motion for summary judgment.

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Finally, because public policy favors disposition on the merits, this factor will always weigh
against dismissal. Id. at 643.

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Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed with prejudice,

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based on Plaintiff's failure to obey the Court’s order of April 9, 2012 and failure to prosecute this action.

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These findings and recommendations are submitted to the United States District Judge assigned

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to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days after being

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served with these findings and recommendations, Plaintiff may file written objections with the Court.

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Such a document should be captioned "Objections to Magistrate Judge's Findings and

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Recommendations." Plaintiff is advised that failure to file objections within the specified time may

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waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
6i0kij

May 21, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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