Ali et al v. Integrated Benefits et al

Filing 8

FINDINGS And RECOMMENDATION To Dismiss This Action For A Failure To Obey A Court Order (Doc. 1 ), signed by Magistrate Judge Barbara A. McAuliffe on 2/16/2012. F&Rs referred to Judge Lawrence J. O'Neill; Objections to F&R due by 3/6/2012.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KARIMA K. ALI and BRAWLEY
INSURANCE SERVICES, INC.,

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Plaintiff

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v.
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INTEGRATED BENEFITS, et. al.,
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Defendant.

1:11cv1889 LJO-BAM
)
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) FINDINGS AND RECOMMENDATION TO
) DISMISS THIS ACTION FOR A FAILURE
) TO OBEY A COURT ORDER
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Plaintiff is proceeding pro se individually and as the representative of Plaintiff Brawley

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Insurance Services, Inc., a corporation. (Doc. 1). On January 11, 2012, this Court issued an Order

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to Show Cause for multiple defects in the complaint. (Doc. 5). Plaintiff was warned that under Local

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Rule 183, a corporation or entity may appear in federal court only through licensed counsel. (Doc.

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5); Local Rule 183. Plaintiff was also directed to update her current mailing address as

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correspondence mailed to her from the court was returned as undeliverable. The Court ordered

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Plaintiff to show cause in writing, by February 8, 2012, why this action should not be dismissed for

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failure to comply with local rules. (Doc. 5). The February 8, 2012 deadline has expired, and

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Plaintiff has failed to respond to the order to show cause.

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Plaintiff has not responded to the Court’s order, and therefore, dismissal of this action is

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appropriate. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226

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(9th Cir. 2006); Local Rule 110. Local Rule 110 provides that “failure of counsel or of a party to

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comply with these Local Rules or with any order of the Court may be grounds for the imposition by

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the Court of any and all sanctions . . . within the inherent power of the Court.” District courts have
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the inherent power to control their dockets and “in the exercise of that power, they may impose

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sanctions including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782

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F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s

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failure to prosecute an action, failure to obey a court order, or failure to comply with local rules. See,

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e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local

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rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply

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with an 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. 1986)

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

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whether to dismiss an action for lack of prosecution, failure to obey a court order, or failure to

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comply with local rules, the court must consider several factors: (1) the public’s interest in

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expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

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prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and

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(5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at

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1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; 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 has

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been pending with no action and no response from Plaintiff since November 14, 2011. Plaintiff has

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failed to respond to the court’s order and appears to have abandoned the case. The third factor, risk

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of prejudice to defendants, also weighs in favor of dismissal, since a presumption of injury arises

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from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d

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522, 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. Finally, a court’s

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warning to a party that her failure to obey the court’s order will result in dismissal satisfies the

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“consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at

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132-33; Henderson, 779 F.2d at 1424. The court’s order requiring plaintiff to show cause why
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Brawley Insurance Services should not be dismissed for failure to be represented by an attorney; and

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show cause why this action should not be dismissed for failure to provide a current mailing address

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expressly stated: “Failure to comply with this order will result in an order dismissing this complaint.”

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Thus, plaintiff had adequate warning that dismissal would result from her noncompliance with the

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court’s order.

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RECOMMENDATION
Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed based
on Plaintiff’s failure to obey the court’s order of January 11, 2012.

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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 fifteen (15)

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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 Judge’s

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Findings and Recommendations.” Plaintiff is 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:
10c20k

February 16, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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