J & J Sports Productions, Inc. v. Veloz et al

Filing 37

FINDINGS and RECOMMENDATIONS Striking Defendant's Answer and Entering Default re 1 Complaint, Signed by Magistrate Judge Jennifer L. Thurston on 4/26/2012. Objections to Findings & Recommendations due within 14 days. Matter referred to Judge Lawrence J. O'Neill. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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J&J SPORTS PRODUCTION, INC.,

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Plaintiff,

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v.
JUAN MANUEL VELOZ, et al.,

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Defendants.

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Case No.: 1:10-cv-00761 LJO JLT
FINGINGS AND RECOMMENDATION
STRIKING DEFENDANT’S ANSWER AND
ENTERING DEFAULT

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I.

Background
On March 7, 2012, the Court issued a minute order continuing the settlement conference based

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upon the unavailability of key personnel for Plaintiff. (Doc. 34) By that time, the Court had been

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informed that Plaintiff had attempted contact with Defendant, Mr. Veloz, several times to discuss

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settlement of the matter but he had not returned the messages. Therefore, the Court ordered Mr. Veloz

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to return the calls placed by Plaintiff to discuss settlement options. Id. The Court ordered the parties

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to lodge settlement conference statements no later than April 16, 2012, in advance of the April 26,

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2012 continued settlement conference date and advised Defendant that his failure to comply would

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result in sanctions being imposed including “striking his answer and entering judgment.” Id. This

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order was returned by the postal service as “Undeliverable. Forward Time Expired.”1

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Plaintiff lodged its settlement conference statement but Mr. Veloz did not. Moreover, the

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Court was advised by Plaintiff’s counsel that Mr. Veloz did not return Plaintiff’s calls—despite

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repeated efforts by Plaintiff to reach him—and, therefore, the parties did not have any current

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settlement discussions. On April 17, 2012, the Court issued an order reciting these facts. (Doc. 35)

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The order also noted,

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Mr. Veloz is advised that his failure to appear at the settlement conference on
April 26, 2012 at 10:00 a.m. SHALL result in a recommendation that his answer
be stricken and default judgment be entered against him.

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(Doc. 35 at 2) Once again, this order was returned as undeliverable. On April 26, 2012, the Court

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held the settlement conference but Defendant did not appear. Likewise, the Court notes that

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Defendant did not lodge a settlement conference statement or appear that the previously scheduled

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settlement conference.

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II.

Analysis
The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a

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

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and all sanctions . . . within the inherent power of the Court.” L.R. 110. Moreover, “[d]istrict courts

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have inherent power to control their dockets,” and in exercising that power, a court may impose

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sanctions including dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d

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829, 831 (9th Cir. 1986). A court may dismiss an action with prejudice, based on a party’s failure to

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prosecute an action or failure to obey a court order, or failure to comply with local rules. See, e.g.,

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Ghazali v. Moran, 46 F.3d 52, 53-54 (9 th Cir. 2995) (dismissal for failure to comply with local rules);

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Ferdik 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); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir.

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Notably, a forwarding order with the United States Postal Service expires after six months. Defendant has not filed a
change of address notification form.

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1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424

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(9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules).

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In determining whether to dismiss an action for failure to prosecute or failure to obey a court

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order, the Court must consider several factors, including: “(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 the

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defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability

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of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61;

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

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

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

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

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Cir. 1976). The Court will not, and cannot, hold the case in abeyance based upon Defendant’s failure

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defend this action. Further, the policy favoring disposition of cases on their merits is outweighed by

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the factors in favor of striking the answer and entering default.

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This Court has warned Defendant repeatedly that he would be subject to sanctions, including

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striking his answer and default being entered, if he fails to comply with the Court’s orders. Thus,

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Defendant had adequate warning that dismissal would result from his noncompliance with the Court’s

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order, and this satisfies the requirement that the Court consider less drastic measures than dismissal of

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the action. Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424. Moreover, no lesser sanction is

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feasible given the Court’s inability to communicate with Defendant.

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IV.

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Findings and Recommendations
Defendant has failed to prosecute his case and comply with the Court’s orders, and follow the

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requirements of the Local Rules in this action. As set forth above, the factors set forth by the Ninth

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Circuit weigh in favor of dismissal of the matter.

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Accordingly, IT IS HEREBY RECOMMENDED:

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Defendant’s answer be STRICKEN;

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Plaintiff be ordered to file its motion for default judgment within 45 days of the order

adopting this Findings and Recommendations.

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

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

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

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fourteen days after being served with these Findings and Recommendations, any party may file

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written objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” The parties are advised that failure to file objections within

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the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

April 26, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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