(PC) Dubrin et al v. Bonilla

Filing 50

***WITHDRAWN PER #52 ORDER*** FINDINGS and RECOMMENDATION to Dismiss Case for Failure to Prosecute and Failure to Obey a Court Order, signed by Magistrate Judge Jennifer L. Thurston on 2/13/14, referred to Judge Ishii. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DURBIN, et al.,

Case No. 1:11-cv-01484-AWI-JLT (PC)

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Plaintiffs,
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v.
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FINDINGS AND RECOMMENDATION TO
DISMISS CASE FOR FAILURE TO PROSECUTE
AND FAILURE TO OBEY A COURT ORDER
(Docs. 44, 47, 49)

BONILLA, et al.,
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30 DAY DEADLINE
Defendants.

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On December 5, 2013, the Court issued an order setting the case for a status conference

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on January 13, 2013 at 9:00 a.m. and requiring the filing of a joint statement. (Doc. 44.)

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Plaintiff's counsel did not appear at the status conference and provided no information for the

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joint statement, though she reviewed the one prepared by Defendants. (Doc. 47; Doc. 46 at 1 n.

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1.) The next day, an order issued to plaintiffs’ counsel to show cause why sanctions should not

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be imposed for their failure to comply with the Court's Order within 14 days. (Doc. 49.) The 14

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day period has expired and counsel has failed to respond.

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Local Rule 110 provides that "failure 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 "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 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 apprised of

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

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to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)

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(dismissal for failure to lack of prosecution and failure to comply with local rules).

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In determining whether to dismiss an action for lack of prosecution, failure to obey a court
order, or failure to comply with local rules, the Court must consider several factors: (1) the

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public's interest in expeditious resolution of litigation; (2) the Court's need to manage its docket;

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

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their 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; Ghazali,

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46 F.3d at 53.
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. The third

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factor, risk of prejudice to defendants, also weighs in favor of dismissal, since a presumption of

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injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air

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West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition

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of cases on their merits -- is greatly outweighed by the factors in favor of dismissal discussed

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herein. Finally, a Court's warning to a party that his 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 at

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1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court's order to show cause

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expressly stated that they must "show cause why sanctions should not be imposed based upon

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their failure to appear at the status conference and to comply with the Court's orders." Thus,

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Plaintiff had adequate warning that dismissal may result from his noncompliance with the Court's

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order.

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Accordingly, the court HEREBY RECOMMENDS that this action be dismissed based on

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Plaintiffs' counsel's failure prosecute this action and to obey the Court's order of January 14,

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2014.

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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 Title 28 U.S.C. § 636(b)(l). Within thirty (30)

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days after being served with these findings and recommendations, Plaintiff may file written

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objections with the Court. Such a document should be captioned "Objections to Magistrate

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Judge's Findings and Recommendations." The parties are advised that failure to file objections

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within the specified time may waive the right to appeal the District Court's order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

February 13, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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