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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 J&J SPORTS PRODUCTION, INC., 12 Plaintiff, 13 14 v. JUAN MANUEL VELOZ, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) Case No.: 1:10-cv-00761 LJO JLT FINGINGS AND RECOMMENDATION STRIKING DEFENDANT’S ANSWER AND ENTERING DEFAULT 17 18 19 I. Background On March 7, 2012, the Court issued a minute order continuing the settlement conference based 20 upon the unavailability of key personnel for Plaintiff. (Doc. 34) By that time, the Court had been 21 informed that Plaintiff had attempted contact with Defendant, Mr. Veloz, several times to discuss 22 settlement of the matter but he had not returned the messages. Therefore, the Court ordered Mr. Veloz 23 to return the calls placed by Plaintiff to discuss settlement options. Id. The Court ordered the parties 24 to lodge settlement conference statements no later than April 16, 2012, in advance of the April 26, 25 2012 continued settlement conference date and advised Defendant that his failure to comply would 26 27 28 1 1 result in sanctions being imposed including “striking his answer and entering judgment.” Id. This 2 order was returned by the postal service as “Undeliverable. Forward Time Expired.”1 3 Plaintiff lodged its settlement conference statement but Mr. Veloz did not. Moreover, the 4 Court was advised by Plaintiff’s counsel that Mr. Veloz did not return Plaintiff’s calls—despite 5 repeated efforts by Plaintiff to reach him—and, therefore, the parties did not have any current 6 settlement discussions. On April 17, 2012, the Court issued an order reciting these facts. (Doc. 35) 7 The order also noted, 8 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. 9 10 11 (Doc. 35 at 2) Once again, this order was returned as undeliverable. On April 26, 2012, the Court 12 held the settlement conference but Defendant did not appear. Likewise, the Court notes that 13 Defendant did not lodge a settlement conference statement or appear that the previously scheduled 14 settlement conference. 15 II. Analysis The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a 16 17 party to comply with . . . any order of the Court may be grounds for the imposition by the Court of any 18 and all sanctions . . . within the inherent power of the Court.” L.R. 110. Moreover, “[d]istrict courts 19 have inherent power to control their dockets,” and in exercising that power, a court may impose 20 sanctions including dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 21 829, 831 (9th Cir. 1986). A court may dismiss an action with prejudice, based on a party’s failure to 22 prosecute an action or failure to obey a court order, or failure to comply with local rules. See, e.g., 23 Ghazali v. Moran, 46 F.3d 52, 53-54 (9 th Cir. 2995) (dismissal for failure to comply with local rules); 24 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an 25 order requiring amendment of complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 26 27 28 1 Notably, a forwarding order with the United States Postal Service expires after six months. Defendant has not filed a change of address notification form. 2 1 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 2 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 3 In determining whether to dismiss an action for failure to prosecute or failure to obey a court 4 order, the Court must consider several factors, including: “(1) the public’s interest in expeditious 5 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 6 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability 7 of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61; 8 Thomspon, 782 F.2d at 831. In the case at hand, the public’s interest in expeditiously resolving this litigation and the 9 10 Court’s interest in managing the docket weigh in favor of dismissal. The risk of prejudice to the 11 defendants also weighs in favor of dismissal, since a presumption of injury arises from the occurrence 12 of unreasonable delay in prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th 13 Cir. 1976). The Court will not, and cannot, hold the case in abeyance based upon Defendant’s failure 14 defend this action. Further, the policy favoring disposition of cases on their merits is outweighed by 15 the factors in favor of striking the answer and entering default. 16 This Court has warned Defendant repeatedly that he would be subject to sanctions, including 17 striking his answer and default being entered, if he fails to comply with the Court’s orders. Thus, 18 Defendant had adequate warning that dismissal would result from his noncompliance with the Court’s 19 order, and this satisfies the requirement that the Court consider less drastic measures than dismissal of 20 the action. Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424. Moreover, no lesser sanction is 21 feasible given the Court’s inability to communicate with Defendant. 22 IV. 23 Findings and Recommendations Defendant has failed to prosecute his case and comply with the Court’s orders, and follow the 24 requirements of the Local Rules in this action. As set forth above, the factors set forth by the Ninth 25 Circuit weigh in favor of dismissal of the matter. 26 Accordingly, IT IS HEREBY RECOMMENDED: 27 1. Defendant’s answer be STRICKEN; 28 3 1 2 2. Plaintiff be ordered to file its motion for default judgment within 45 days of the order adopting this Findings and Recommendations. 3 These Findings and Recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the 5 Local Rules of Practice for the United States District Court, Eastern District of California. Within 6 fourteen days after being served with these Findings and Recommendations, any party may file 7 written objections with the court. Such a document should be captioned “Objections to Magistrate 8 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections within 9 the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 10 1153 (9th Cir. 1991). 11 12 13 IT IS SO ORDERED. 14 15 16 Dated: April 26, 2012 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 9j7khijed 17 18 19 20 21 22 23 24 25 26 27 28 4

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