Thompson v. Thatcher et al
Filing
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FINDINGS and RECOMMENDATIONS recommending Granting Defendant's Motion to Dismiss and Dismissing the Action With Prejudice, signed by Magistrate Judge Jennifer L. Thurston on 5/28/2014. Referred to Judge O'Neill. Objections to F&R due within 14 days. (Hall, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BILLY R. THOMPSON, JR.,
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Plaintiff,
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v.
SGT. THATHER, et al.,
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Defendant.
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Case No.: 1:11-cv-01198 - LJO - JLT
FINDINGS AND RECOMMENDATIONS
GRANTING DEFENDANT’S MOTION TO
DISMISS AND DISMISING THE ACTION WITH
PREJUDICE
(Doc. 31)
Justin Lewis, Alexander Paiz and Joshua Finney (collectively, “Defendants”) seek dismissal of
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the action with prejudice for Plaintiff Billy Thompson’s failure to prosecute the action and failure to
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comply with the Court’s order. (Doc. 31.) Plaintiff did not oppose the motion. For the reasons set
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forth below, the Court recommends Defendant’s motion to dismiss be GRANTED and the action be
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DISMISSED WITH PREJUDICE.
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I.
Relevant Factual and Procedural History
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The Court held a scheduling conference on November 19, 2013, at which deadlines related to
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discovery were set for the parties. (Doc. 22.) The parties were instructed to make initial disclosures
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no later than December 9, 2013, and to complete non-expert discovery no later than December 29,
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2014. (Id. at 1.) The parties were informed that “[f]ailure to comply with this order may result in the
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imposition of sanctions.” (Id. at 6.)
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On February 24, 2014, Defendants filed a motion to compel discovery, asserting Plaintiff had
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failed to comply with the Court’s Scheduling Order and failed to respond to Defendants’ discovery
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requests, including interrogatories and requests for production of documents. (Doc. 26.) On April 3,
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2014, the Court granted Defendants’ motion to compel, and ordered Plaintiff to “serve his initial
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disclosures no later than April 25, 2014,” and “produce documents responsive to Defendants’ Request
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for Production of Documents- Set One no later than May 9, 2014.” (Doc. 30 at 4-5, emphasis in
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original.) Further, the Court informed Plaintiff that failure to comply with the order may result in a
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recommendation of dismissal of the action. (Id. at 5.)
Defendants filed the motion to dismiss now pending before the Court on April 29, 2014,
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asserting Defendant failed to comply with the Court’s order to provide discovery. (Doc. 31.) The
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Court ordered Plaintiff to file any opposition to the motion no later than May 23, 2014. (Doc. 32.) To
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date, Plaintiff has not opposed the request for dismissal.
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II.
Failure to Prosecute and Obey the Court’s Order
Pursuant to Rule 41 of the Federal Rules of Civil Procedure, “If [a] plaintiff fails to prosecute or
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to comply with . . . a court order, a defendant may move to dismiss the action or any claim against it.
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Fed. R. Civ. P. 41(b). In addition, the Local Rules, corresponding with the Federal Rules of Civil
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Procedure, provide: “Failure of counsel or of a party to comply with . . . any order of the Court may be
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grounds for the imposition by the Court of any and all sanctions . . . within the inherent power of the
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Court.” LR 110. “District courts have inherent power to control their dockets,” and in exercising that
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power, a court may impose sanctions including dismissal of an action. Thompson v. Housing Authority
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of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). Thus, a court may dismiss an action based upon a
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party’s failure to prosecute an action or failure to obey a court order. See e.g. Ferdik v. Bonzelet, 963
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F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment
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of 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); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for
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failure to prosecute and to comply with local rules).
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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 order,
or failure to comply with the Local Rules, the Court must consider several factors, including: “(1) the
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public’s 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 merits;
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and (5) the availability of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also Ferdik, 963
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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 resolving this litigation and the Court’s interest in
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managing the docket weigh in favor of dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 990
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(9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always favors dismissal”);
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Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent interest in managing their
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dockets without being subject to noncompliant litigants). In addition, the risk of prejudice to the
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defendants weighs in favor of dismissal, since a presumption of injury arises from the occurrence of
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unreasonable delay in prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir.
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1976). Notably, Plaintiff failed to make his initial disclosures, did not respond to the defendants’
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discovery requests even when ordered to do so by the Court, and has failed to take any action in the
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matter since December 2013, when he filed a change of address.
In the Court’s Scheduling Order, the parties were cautioned that “[f]ailure to comply … may
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result in the imposition of sanctions.” (Doc. 22 at 6.) Further, in the order directing Plaintiff to serve
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his initial disclosures and respond to the defendants’ discovery request, the Court cautioned Plaintiff
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that “a recommendation of dismissal or imposition of other sanctions” may result from failure to
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comply with the Court’s order. (Doc. 30 at 5, emphasis in original.) This warning to Plaintiff that his
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failure to comply with the Order would result in dismissal satisfies the requirement that the Court
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consider less drastic measures. Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424. Thus,
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Plaintiff had adequate warning that dismissal would result from his failure to prosecute the action.
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Given these facts, the policy favoring disposition of cases on their merits is outweighed by the factors
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in favor of dismissal.
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IV.
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Conclusion and Order
Plaintiffs has failed to prosecute this action, has failed to comply with the Court’s Orders dated
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November 19, 2013 and April 29, 2014. (Docs. 22, 31.) Based upon the foregoing, IT IS HEREBY
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RECOMMENDED:
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Defendants’ motion to dismiss be GRANTED; and
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Plaintiff’s complaint be DISMISSED WITH PREJUDICE.
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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 fourteen
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days of the date of service of these Findings and Recommendations, any party may file written
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objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” The parties are advised that failure to file objections within the
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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.
Dated:
May 28, 2014
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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