Tate v. Cate et al

Filing 62

ORDER Dismissing Defendant Villasayne Without Prejudice for Plaintiff's Failure to Prosecute and Failure to Obey the Court's Orders 61 , signed by Magistrate Judge Jennifer L. Thurston on 2/28/12. Defendant Villasayne terminated. (Gonzalez, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY TATE,

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Plaintiff,
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vs.
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MATTHEW CATE, et al.,
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Defendants.
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_______________________________________ )

Case No. 1:09-cv-00770 JLT (PC)
ORDER DISMISSING DEFENDANT
VILLASAYNE WITHOUT PREJUDICE FOR
PLAINTIFF’S FAILURE TO PROSECUTE
AND FAILURE TO OBEY THE COURT’S
ORDERS

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Larry Tate (“Plaintiff”) commenced this action on April 30, 2009 (Doc. 1). On February 2, 2012

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this Court issued an Order to Show Cause to Plaintiff to show why Defedant Villasayne should not be

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dismissed without prejudice from the lawsuit or, alternatively, to notify the Court that he chooses to

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proceed only against the defendants who have been served. (Doc. 61).

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The Court’s Order to Show Cause was based on the fact that the United States Marshal was

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unable to serve Defendant Villasayne on three separate dates between December 2010 and June 2011:

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each time the summons were returned unexecuted. (Docs. 27-28).

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The order advised Plaintiff that his “failure to comply with the order will result in the Court

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dismissing this defendant without prejudice.” (Doc. 61). Plaintiff was ordered to respond to the Court’s

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order within twenty-one days of service, or by February 24, 2012. Id. at 2. To date, Plaintiff has not

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complied with or otherwise responded to the Court’s order.

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1 I. Rule 4(m)
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The Federal Rules of Civil Procedure set forth the standards for commencing an action and for

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service. Rule 4(m) requires a defendant to be served within 120 days of the filing of the complaint. Fed.

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R. Civ. P. 4(m). Thus, defendants should have been served by December 21, 2010. When service of

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the summons and complaint is not made within the specified time, federal district courts have the

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authority to dismiss an action sua sponte without prejudice, after notice to the plaintiff. Id.

7 II. Failure to prosecute and obey the Court’s orders
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The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a party

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to comply with . . . any order of the Court may be grounds for the imposition by the Court of any and

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all sanctions . . . within the inherent power of the Court.” LR 110. “District courts have inherent power

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to control their dockets,” and in exercising that power, a court may impose sanctions including dismissal

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of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A

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court may dismiss an action with prejudice, based on a party’s failure to prosecute an action or failure

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to obey a court order, or failure to comply with local rules. See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258,

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1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of

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complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to

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comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for

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failure to prosecute and to comply with local rules).

19 III. Discussion and Analysis
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In determining whether to dismiss an action for failure to prosecute, failure to obey a court order,

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or failure to comply with the Local Rules, the Court must consider several factors, including: “(1) the

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public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the

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risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits;

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and (5) the availability of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also Ferdik, 963

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F.2d at 1260-61; Thomspon, 782 F.2d at 831.

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In the case at hand, the public’s interest in expeditiously resolving this litigation and the Court’s

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interest in managing the docket weigh in favor of dismissal. The risk of prejudice to the defendants also

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weighs in favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable

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delay in prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976).

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Finally, the Court’s warning to Plaintiff that failure to obey the order would result in dismissal

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satisfies the requirement that the Court consider less drastic measures. Ferdik, 963 F.2d at 1262;

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Henderson, 779 F.2d at 1424. The Order to Show Cause clearly advised Plaintiff of his obligation to

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give the Court reasons why Defendant Villasayne should not be dismissed. (See Doc. 61 at 2).

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Likewise, Plaintiff was notified that dismissal of Defendant Villasayne might result for failure to comply

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with the Court’s order. Id. Thus, Plaintiff had adequate warning that dismissal of Defendant Villasayne

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would result from his noncompliance with the Court’s order. Given these facts and the fact that Plaintiff

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has not engaged in this action in any manner since the Court issued its February 2, 2012 Order to Show

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Cause, the Court finds the policy favoring disposition of cases on their merits is outweighed by the

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factors in favor of dismissal.

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Accordingly, IT IS HEREBY ORDERED that Defendant Villasayne is DISMISSED

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WITHOUT PREJUDICE for Plaintiff’s failure to prosecute and failure to obey the Court’s orders of

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February 2, 2012. (Doc. 61).

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17 IT IS SO ORDERED.
18 Dated: February 28, 2012
9j7khi
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/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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