Faalevao v. Mechem et al
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss This Action for Plaintiff's Failure to Obey Court Orders and Failure to Prosecute signed by Magistrate Judge Gary S. Austin on 7/14/2011. Objections to F&R due by 8/18/2011. (Bradley, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LIA CHARLENE FAALEVAO,
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Plaintiff,
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v.
TIMOTHY DAVENPORT MECHEM,
INSURED, AND ALLSTATE
INSURANCE COMPANY,
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Defendants.
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1:10-cv-00688 OWW GSA
FINDINGS AND RECOMMENDATIONS
TO DISMISS THIS ACTION FOR
PLAINTIFF’S FAILURE TO OBEY COURT
ORDERS AND FAILURE TO PROSECUTE
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RELEVANT PROCEDURAL BACKGROUND
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On April 19, 2010, Plaintiff Lia Charlene Faalevao filed a complaint with this Court
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asserting causes of action against Defendants Timothy Davenport Mechem and Allstate
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Insurance Company. (Doc. 1.) This Court screened the complaint, and eventually the summons
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and complaint were served on Defendant Mechem.1 (Docs. 6 & 14.) Defendant filed an answer
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to the complaint on October 27, 2010. (Doc. 16.)
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Defendant Allstate Insurance Company was dismissed and never served with the summons and complaint.
(See Docs. 6, 9-10 & 12.)
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A Scheduling Conference Order was issued by District Judge Oliver W. Wanger on
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December 8, 2010, wherein numerous discovery deadlines and hearing dates were set and agreed
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to by all parties. (Doc. 24.)
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On March 15, 2011, Defendant Mechem filed a Motion to Compel Answers to
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Interrogatories, to Compel Responses to Requests for Production of Documents, to Compel
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Attendance at Physical Examination, to Compel Attendance at Deposition, to Modify Scheduling
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Order, and to Continue the Trial Date, or in the Alternative, to Dismiss the Action. The motion
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was set before Judge Wanger. (Docs. 25-27.)
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On May 9, 2011, the time set for hearing on the motion, Defendant Mechem appeared
through counsel Paul Auchard; Plaintiff failed to appear. (Doc. 30.)
On May 17, 2011, Judge Wanger issued a Memorandum Decision and Order regarding
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Defendant’s motion. In relevant part, Judge Wanger ordered Plaintiff to respond to
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interrogatories, requests for production of documents, and to attend both a deposition and a
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physical examination. Moreover, the scheduling order was ordered modified and the trial date
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was continued. (Doc. 35.)
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On May 26, 2011, Judge Wanger ordered, in pertinent part, the following:
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3,
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6.
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Plaintiff shall provide the Rule 26 disclosures within 30 days.
Plaintiff shall answer the interrogatories propounded by
defendant[] within 30 days.
Plaintiff shall respond to defendant’s request for production of
documents within 30 days.
Plaintiff shall appear for a medical examination by Dr. H.B.
Morgan on June 9, 2011, at 2:00 p.m. in the offices of Dr. Morgan
located at 5690 N. Fresno St., #110, Fresno, California.
Plaintiff shall appear for her deposition on June 9, 2011, at 9:00
a.m. at the offices of Auchard & Stewart, 2377 W. Shaw, Suite
106, Fresno, California.
Defendant shall pay plaintiff’s reasonable travel and lodging
expenses for the medical examination and deposition referred to in
paragraphs 3 and 4 from Portland, Oregon.
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(Doc. 38 at 1-2.)
Thereafter, on June 17, 2011, this Court was advised that Plaintiff had failed to comply
with Judge Wanger’s directives. Thus, an Order to Show Cause was issued by the undersigned,
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requiring Plaintiff’s personal appearance at the hearing set for 10:00 a.m. in Courtroom 10 on
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July 13, 2011. (Doc. 39.)
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On June 24, 2011, Defendant filed a Memorandum of Points and Authorities in Support
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of Dismissal of the Action, including a declaration of defense counsel, regarding Plaintiff’s
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failure to participate in the litigation. (Docs. 40-41.)
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On July 13, 2011, this Court held a hearing on the Order to Show Cause. Paul Auchard
personally appeared on behalf of Defendant Mechem. Plaintiff failed to appear.
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DISCUSSION
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Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these
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Rules or with any order of the Court may be grounds for imposition by the Court of any and all
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sanctions . . . within the inherent power of the Court.” District courts have the inherent power to
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control their dockets and “in the exercise of that power, they may impose sanctions including,
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where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th
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Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute
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an action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v.
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Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik
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v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an
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order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir.
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1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court
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apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal
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for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.
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1986) (dismissal for failure to lack of prosecution and failure to comply with local rules). In
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determining whether to dismiss an action for lack of prosecution, failure to obey a court order, or
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failure to comply with local rules, the Court must consider several factors: (1) the public’s
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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
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merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831;
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Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61;
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Ghazali, 46 F.3d at 53.
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In the instant case, the Court finds that the public’s interest in expeditiously resolving this
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litigation and the Court’s interest in managing the docket weigh in favor of dismissal, as this case
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has been pending since April 19, 2010, yet there is no indication that Plaintiff intends to
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prosecute this action for she has ignored several court orders requiring either a response or action
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on her part. Henderson v. Duncan, 779 F.2d at 1424. The third factor, risk of prejudice, also
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weighs in favor of dismissal, since a presumption of injury arises from the occurrence of
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unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir.
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1976). More specifically, Defendant has sought to obtain discovery from Plaintiff and/or
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attempted to arrange for Plaintiff’s deposition and medical evaluation for more than six months
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without success. The fourth factor - public policy favoring disposition of cases on their merits -
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is greatly outweighed by the factors in favor of dismissal discussed herein. Thompson, 782 F.2d
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at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61;
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Ghazali, 46 F.3d at 53.
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Finally, a court’s warning to a party that a failure to obey the Court’s order will result in
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dismissal satisfies the “consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d
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at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. Here, Plaintiff received such a
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warning on June 17, 2011, when this Court warned Plaintiff that “a failure to personally appear
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as required in this Order to Show Cause will result in a recommendation that this action be
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dismissed for her failure to follow a court order and for a failure to prosecute this action.”
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(Doc. 39 at 2, emphasis in original.) Moreover, Plaintiff was similar warned on May 21, 2010:
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“Failure to comply with the Local Rules, federal rules or a court order . . . will be grounds for
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dismissal . . .” and yet again on August 22, 2010. (See Docs. 5 at 1 & Doc. 15 at ¶ 6.) Thus,
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Plaintiff has had more than adequate warning that dismissal would result from noncompliance
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with court orders.
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RECOMMENDATION
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Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for
Plaintiff’s failure to comply with numerous court orders and for a failure to prosecute this action.
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These findings and recommendations are submitted to the district judge assigned to this
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action, pursuant to Title 28 of the United States Code section 636(b)(1)(B) and this Court’s Local
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Rule 304. Within thirty (30) days of service of this recommendation, any party may file written
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objections to these findings and recommendations with the Court and serve a copy on all parties.
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Such a document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” The district judge will review the magistrate judge’s findings and
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recommendations pursuant to Title 28 of the United States Code section 636(b)(1)(C). The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the district judge’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
July 14, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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