Best v. United States et al

Filing 5

ORDER DISMISSING Action, signed by Magistrate Judge Dennis L. Beck on 4/13/10: This action is DISMISSED based on Plaintiff's failure to prosecute, and the Clerk of the Court is DIRECTED to enter judgment. (CASE CLOSED)(Hellings, J)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 On August 21, 2009, Petitioner Tad C. Best, proceeding in pro se, filed a petition to quash a 18 third party summons issued by the Internal Revenue Service to Union Bank. 19 On January 22, 2010, the Court issued an Order to Show Cause why the action should not be 20 dismissed for lack of subject matter jurisdiction. The Court explained that Petitioner had not filed a 21 proof of service or otherwise indicated that he had provided proper notice. The Court ordered 22 Petitioner to file a written response or, alternatively, to file a proof of service, within 20 days of the 23 date of service of the order. 24 On February 1, 2010, the Order to Show Cause was returned to the Court by the United 25 States Post Office as undeliverable. The envelope stated, "Moved Left No Address- Return to 26 Sender." 27 28 1 ) ) ) ) ) Petitioner, ) ) vs. ) ) UNITED STATES OF AMERICA, et al., ) ) ) ) Respondents. ) ____________________________________) TAD C. BEST, 1:09mc00038 DLB IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

ORDER DISMISSING ACTION

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Plaintiff has not updated his address or otherwise contacted the Court. DISCUSSION Pursuant to Local Rule 183(b), a party appearing in propria persona is required to keep the court apprised of his or her current address at all times. Local Rule 183(b) provides, in pertinent part: If mail directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties within sixty (63) days thereafter of a current address, the Court may dismiss the action without prejudice for failure to prosecute. In the instant case, over 63 days have passed since Plaintiff's mail was returned and Plaintiff has not notified the Court of a current address. In determining whether to dismiss an action for lack of prosecution, the Court must consider several 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. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988). The Court finds that the public's interest in expeditiously resolving this litigation and the Court's interest in managing the docket weigh in favor of dismissal. The Court cannot hold this case in abeyance indefinitely based on Plaintiff's failure to notify the court of his address. The third factor, risk of prejudice to the defendants, also weighs in favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition of cases on their merits -- is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, given the Court's inability to communicate with Plaintiff based on his failure to keep the Court apprised of his current address, no lesser sanction is feasible.

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1 2 3 4 5 6 3b142a 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS SO ORDERED. Dated:

ORDER Accordingly, this action is HEREBY DISMISSED based on Plaintiff's failure to prosecute, and the Clerk of the Court is DIRECTED to enter judgment.

April 13, 2010

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE

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