Pineda et al v. United States of America et al
Filing
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FINDINGS and RECOMMENDATIONS Regarding Plaintiff's Failure to Follow a Court Order. Referred to Judge Ishii; Objections to F&R due within 15 days after being served a copy of this Order. signed by Magistrate Judge Barbara A. McAuliffe on 12/2/2011. (Herman, H)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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TAMMY PINEDA and SERGIO PINEDA, )
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Plaintiffs,
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v.
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UNITED STATES OF AMERICA, et al., )
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Defendants.
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____________________________________)
CASE No.: 1:11-cv-00878 - - BAM
FINDINGS AND RECOMMENDATION
REGARDING PLAINTIFF’S FAILURE TO
FOLLOW A COURT ORDER
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On May 31, 2011, Tammy Pineda and Sergio Pineda (“Plaintiffs”) filed this action against
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defendants United States of America, James A. Kraus, M.D., Susan Kraus, M.D., Enrique
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Talamantes, PA-C, Silvia Diego, M.D., and Vikram Khanna, MD (collectively, the “Defendants”).
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On November 17, 2011, the Court issued an Order to Show Cause for why Plaintiffs’ case should not
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be dismissed for failure to file proofs of service of the summons and complaint on Defendants.
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(Doc. 9.) The deadline for responding to the Order to Show Cause was December 1, 2011. To date,
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Plaintiffs have not complied with the Court’s Order.
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DISCUSSION
A.
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Rule 4(m) Requires Dismissal
Federal Rule of Civil Procedure 4(m) addresses the time limit to serve a summons and
complaint:
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If a defendant is not served within 120 days after the complaint is filed, the court - on
motion or on its own after notice to the plaintiff - must dismiss the action without
prejudice against the defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court must extend the time for
service for an appropriate period.
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Rule 4(m) “encourages efficient litigation by minimizing the time between the commencement of an
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action and service of process.” Electric Specialty Co. v. Road and Ranch Supply, Inc., 967 F.2d 309,
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311 (9th Cir. 1992) (addressing former F. R. Civ. P. 4(j).)
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More than 120 days have passed since Plaintiffs filed their complaint on May 31, 2011. The
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Court provided notice to Plaintiffs that their claims would be dismissed unless (1) Plaintiffs filed
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proofs of service of the summons and complaint on Defendants, or (2) Plaintiffs established good
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cause for their failure to timely serve Defendants with the summons and complaint. (Doc. 9.)
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Because Plaintiffs have failed to perform either of these tasks, the Court is now required to dismiss
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Plaintiffs claims. Fed. R. Civ. P. 4(m).
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B.
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The Court’s Inherent Authority Permits Dismissal For Failure to Obey Court Order
Local Rule 110 provides that a “[f]ailure of counsel or of a party to comply with these Rules
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or with any order of the Court may be grounds for the 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 Ain the exercise of that power, they may impose sanctions including, where
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appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir.
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1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an
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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 v.
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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order
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requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988)
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(dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprized of
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address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to
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comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for
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lack of prosecution and failure to comply with local rules). In determining whether to dismiss an
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action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, the
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court must consider several factors: (1) the public’s interest in expeditious resolution of litigation;
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(2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public
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policy favoring disposition of cases on their merits; and (5) the availability of less drastic
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alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at 130;
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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24.
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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 because there is
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no indication that the Plaintiff intends to prosecute this action. The third factor, risk of prejudice to
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defendants, also weighs in favor of dismissal because a presumption of injury arises from any
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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). The fourth factor, public policy favoring disposition of cases on their merits, is greatly
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outweighed by the factors in favor of dismissal. Finally, a court’s warning to a party that his failure
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to obey the court’s order will result in dismissal satisfies the “consideration of alternatives”
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requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The
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Court’s order requiring Plaintiff to serve Defendants with a summons and complaint, or to establish
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good cause for failure to do the same, was clear that dismissal would result from non-compliance
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with the Court's order. (Doc. 9, 8: 6-8) (“The Court will recommend dismissal of this action if
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Plaintiffs fail to: (1) establish good cause for their failure to timely serve Defendants with a
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summons and complaint; or (2) comply with this Order.”)
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/././
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RECOMMENDATION
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Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for
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Plaintiffs failure to serve Defendants with the summons and complaint, and for failure to comply
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with a court order.
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This Findings and Recommendation is submitted to the Honorable Anthony W. Ishii, United
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States District Court Judge, pursuant to the provisions of 28 U.S.C. Section 636 (b)(1)(B). Within
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fifteen (15) days after being served with a copy, Plaintiff may file written objections with the Court.
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Such a document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.
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§ 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified time may waive
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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:
10c20k
December 2, 2011
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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