Kingsburg Apple Packers, et al, vs. Ballantine Produce Co., Inc. et al,

Filing 327

FINDINGS and RECOMMENDATIONS Dismissing the Intervenor Complaint of DiBudio Land Management for Failure to Prosecute and Failure to Comply with the Court's Order, signed by Magistrate Judge Jennifer L. Thurston on 9/11/2013. Referred to Judge Ishii. Objections to F&R due within 14 days. (Hall, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

17

KINGSBURG APPLE PACKERS, INC. dba )
)
KINGSBURG ORCHARDS, et al.,
)
Plaintiffs,
)
)
v.
)
)
BALLANTINE PRODUCE CO., INC., a
)
California corporation, et al.,
)
)
Defendants.
)

18

DIBUDUO LAND MANAGEMENT,

12
13
14
15
16

19
20
21
22
23

Case No.: 1:09-cv-00901 - AWI - JLT
FINDINGS AND RECOMMENDATIONS
DISMISSING THE INTERVENOR COMPLIANT
OF DIBUDUO LAND MANAGEMENT FOR
FAILURE TO PROSECUTE AND FAILURE TO
COMPLY WITH THE COURT’S ORDER

)
)
)
Intervenor Plaintiff,
)
)
v.
)
BALLANTINE PRODUCE CO., INC., et al., )
)
Defendants.
)
)
DiBuduo Land Management (“DLM”) filed an intervenor complaint against Ballantine Produce

24
25

on July 29, 2009. (Doc. 71). Because DLM has failed to prosecute this action and failed to comply

26

with the Court’s order to show cause, the Court recommends its interventor complaint be DISMISSED

27

WITH PREJUDICE.

28

///
1

1

I.

Procedural History

2

This action was initiated by Kingsburg Apple Packers, Inc. against Ballantine Produce

3

(“Ballantine”) by filing a complaint for a violation of the Perishable Agricultural Commodities Act of

4

1930 (“PACA”) on May 21, 2009. Ballantine filed an answer to DLM’s intervenor complaint on

5

August 12, 2009. (Doc. 89).
On February 18, 2010, the Court determined that DLM did not have a valid PACA claim

6
7

because it failed to timely file a notice of intent to preserve PACA trust benefits. (Doc. 150). DLM

8

reported that as a result of the Court’s decision, the company “chose to litigate its [remaining] state

9

law claims: in state court.” (Doc. 318 at 2). DLM filed a Notice of Dismissal on August 8, 2012

10

(Doc. 291), after with the Court ordered the intervenor action be closed. (Doc. 292).
On March 19, 2013, the Court determined the Notice of Dismissal filed by DLM was improper,

11
12

and that the Court’s prior order closing the action was void. (Doc. 325). The Court observed DLM

13

“may file and serve a motion for voluntary dismissal pursuant to Rule 42(a)(2) if desired.” Id. at 4.

14

After that time, no action was taken by DLM on its claims against Ballantine. Accordingly, the Court

15

issued an order to show cause to DLM to show why the action should not be dismissed on August 29,

16

2013. (Doc. 326). In the alternative, the Court instructed that DLM may file and serve a motion for

17

voluntary dismissal pursuant to Rule 41(a)(2). However, DLM failed to respond to the Court’s order.

18

II.

19

Failure to Prosecute and Obey the Court’s Orders
The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a

20

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

21

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

22

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

23

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

24

1986). A court may dismiss an action based upon a party’s failure to obey a court order, failure to

25

prosecute an action, or failure to comply with local rules. See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258,

26

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

27

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

28

comply with a court order).
2

1

III.

Discussion and Analysis
To determine whether to dismiss an action for failure to prosecute, failure to obey a court order,

2
3

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

4

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

5

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

6

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

7

963 F.2d at 1260-61; Thomspon, 782 F.2d at 831.
In the case at hand, the public’s interest in expeditiously resolving this litigation and the

8
9

Court’s interest in managing the docket weigh in favor of dismissal. The risk of prejudice to the

10

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

11

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

12

Cir. 1976). Notably, DLM has chosen to prosecute its remaining state court claims in state court, and

13

previously attempted to dismiss its claims without prejudice.
In the Order to Show Cause, the Court warned that it “may dismiss an action based on a party’s

14
15

failure to prosecute an action or failure to obey a court order . . .” (Doc. 326 at 2). The warning to

16

DLM that failure to comply with the order would result in dismissal satisfies the requirement that the

17

Court consider less drastic measures. Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424. Thus,

18

DLM had adequate warning that dismissal would result from failure to prosecute the action and

19

noncompliance with the Court’s orders. Given these facts, the policy favoring disposition of cases on

20

their merits is outweighed by the factors in favor of dismissal.

21

IV.

DLM has failed to prosecute this action, and failed to comply with the Court’s order to show

22
23

Findings and Recommendations

cause dated August 29, 2013.

24

Accordingly, IT IS HEREBY RECOMMENDED:

25

1.

DLM’s Interventor Complaint be DISMISSED WITH PREJUDICE; and

26

2.

The Clerk of Court be DIRECTED to close this action, because this order would
terminate the action in its entirety.

27
28

///
3

1

These Findings and Recommendations are submitted to the United States District Judge

2

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local

3

Rules of Practice for the United States District Court, Eastern District of California. Within 14 days

4

after being served with these Findings and Recommendations, any party may file written objections

5

with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and

6

Recommendations.” The parties are advised that failure to file objections within the specified time may

7

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

8
9
10
11

IT IS SO ORDERED.
Dated:

September 11, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4