Donne et al v. Hardt et al

Filing 34

FINDINGS AND RECOMMENDATIONS dismissing action for Plaintiff's failure to prosecute signed by Magistrate Judge Jennifer L. Thurston on 10/1/2013. Referred to District Judge Anthony W. Ishii; Objections to F&R due within 14-days.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARK DELL DONNE, et al.,
Plaintiff,

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v.

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TIMOTHY JOHN HARDT, et al.,
Defendants.

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Case No.: 1:10-cv-02014 - AWI - JLT
FINDINGS AND RECOMMENDATIONS
DISMISSING THE ACTION FOR PLAINTIFF’S
FAILURE TO PROSECUTE

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Mark Dell Donne, as a participant in The Journey Electrical Technologies, Inc. 401K Plan and

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as a trustee of The Journey Electrical Technologies, Inc. 401K Plan; The Journey Electrical 401K Plan;

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and Journey Electrical Technologies, Inc. (“Plaintiffs”) have not pursued prosecution of this action.

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Accordingly, the Court recommends the matter be DISMISSED.

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I.

Relevant Procedural History

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On January 22, 2013, the Court issued an order to show cause why sanctions should not be

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imposed for failure to submit their joint pretrial conference statement. (Doc. 28) In response, the

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parties reported they had “resolved their dispute and [were] in the process of preparing a Settlement

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Agreement and Mutual release, with related Requests for Dismiss of this case and the related case also

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involving the[] Plaintiffs.” (Doc. 29 at 3). As a result, the Court discharged the order and indicated it

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would await a dismissal. (Doc. 31). Although that order issued on February 12, 2013, no dismissal

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was filed.
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On September 3, 2013, in the related matter, the Court issued an order to show cause—to these

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same parties—indicating that it intended to dismiss the matter for failure to prosecute. Dell Donne et

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al. v. Hardt et al.,case number 1:10-cv-02341 AWI JLT [Doc. 81].

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On September 30, 2013, counsel responded in this matter to the order to show cause and filed

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statements reporting that although the matter had settled, Plaintiffs had failed to sign the settlement

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agreement. (Doc. 32 at 2) In addition, Plaintiffs’ counsel Nichole Wong filed a declaration asserting

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her office had been unable to reach Plaintiffs and Plaintiffs had cut-off all communication. Id.

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II.

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

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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.” LR 110. “District courts have inherent

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

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

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

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

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

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

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comply with a court order).

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III.

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

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order, or failure to comply with the Local Rules, the Court must consider several factors, including:

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

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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases

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

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also Ferdik, 963 F.2d at 1260-61; Thomspon, 782 F.2d at 831.

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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). Notably, Plaintiffs are no longer in contact with their counsel, and appear to have

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abandoned this action.

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In the Order to Show Cause dated September 3, 2013, the Court warned that it may dismiss the

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action for Plaintiffs’ failure to prosecute. Dell Donne et al. v. Hardt et al.,case number 1:10-cv-02341

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AWI JLT [Doc. 81]. The Court’s warning to Plaintiffs satisfies the requirement that the Court consider

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less drastic measures. Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424. Given these facts, the

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policy favoring disposition of cases on their merits is outweighed by the factors in favor of dismissal.

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IV.

Findings and Recommendations

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Because Plaintiffs have failed to prosecute this action, IT IS HEREBY RECOMMENDED:

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This action be DISMISSED WITHOUT PREJUDICE; and

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The Clerk of Court be DIRECTED to close this action.

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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 Local

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

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

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

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

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

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IT IS SO ORDERED.
Dated:

October 1, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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