Lance et al v. Adams et al
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss This Action for Plaintiffs' Failure to Obey a Court Order signed by Magistrate Judge Gary S. Austin on 6/10/2011. Objections to F&R due by 7/14/2011.. (Bradley, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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PAMELA LANCE, doing business as
NATIONAL DESALINATION WATER
SYSTEMS, CONROY GOODEN, and
FLORENCE E. MASON,
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Plaintiffs,
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v.
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LESLIE JEAN ADAMS, NATALIE GARY, )
CORNELL J. PRICE AND EQUITIES FIRST)
HOLDINGS, LLC,
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Defendants.
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_____________________________________ )
1:11-cv-00323 OWW GSA
FINDINGS AND RECOMMENDATIONS
TO DISMISS THIS ACTION FOR
PLAINTIFFS’ FAILURE TO OBEY A
COURT ORDER
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RELEVANT PROCEDURAL BACKGROUND
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On February 25, 2011, Plaintiffs Pamela Lance doing business as National Desalination
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Water Systems, Conroy Gooden, and Florence Mason filed a complaint with this Court. (Doc.
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1.)
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On May 6, 2011, this Court issued an Order Dismissing Complaint With Leave to
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Amend. More particularly, Plaintiffs’ complaint was dismissed for issues related to jurisdiction,
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standing and legal representation, and for a failure to state a legally cognizable claim or claims.
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Nevertheless, Plaintiffs were granted leave of court to file an amended complaint, in order to cure
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the deficiencies identified. (See Doc. 6.)
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As of today’s date, Plaintiffs have failed to file an amended complaint or otherwise
respond to this Court’s order.
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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 February 25, 2011, and yet there is no indication that Plaintiffs intend to
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prosecute this action. Henderson v. Duncan, 779 F.2d at 1424. The third factor, risk of
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prejudice, also weighs in favor of dismissal, since a presumption of injury arises from the
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occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522,
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524 (9th Cir. 1976). The fourth factor - public policy favoring disposition of cases on their
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merits - is greatly outweighed by the factors in favor of dismissal discussed herein. Thompson,
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782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at
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1260-61; 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. This Court’s May 6, 2011, order
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specifically provided as follows: “If Plaintiffs fail to file a first amended complaint, the Court
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will recommend that this action be dismissed for a failure to follow a court order.” (See
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Doc. 6 at 11, emphasis in original.) Thus, Plaintiffs have had adequate warning that dismissal
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would result from noncompliance with the Court’s order.
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RECOMMENDATION
Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for a
failure to comply with a court order.
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
June 10, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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