Reddy v. Precyse Solutions, LLC et al

Filing 12

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Stanley A. Boone on 06/18/2013 recommending that action be dismissed, without prejudice for Plaintiff's failure to prosecute re 1 Complaint. Referred to Judge Anthony W. Ishii; Objections to F&R due by 7/5/2013. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KRISHNA REDDY,

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Case No. 1:12-cv-02061-AWI-SAB

Plaintiff,
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO PROSECUTE

v.
PRECYSE SOLUTIONS LLC, et al.,

OBJECTIONS DUE WITHIN FOURTEEN DAYS
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Defendants.

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Plaintiff Krishna Reedy is appearing pro se and in forma pauperis in this action. On April

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12, 2013, an order issued requiring Plaintiff to either file an amended complaint or notify the

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Court that she wished to proceed on the claims found to be cognizable in the complaint. (ECF

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No. 5.) On May 10, 2013, an order issued granting Plaintiff’s request for a thirty day extension of

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time to file an amended complaint and denying Plaintiff’s motion for appointment of counsel and

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motion to file documents electronically. (ECF No. 9.) On May 30, 2013, Plaintiff filed a motion

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for the District Court to reconsider the order denying appointment of counsel and electronic filing

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of documents. (ECF No. 10.) The District Court denied Plaintiff’s motion for reconsideration on

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June 11, 2013. (ECF No. 11.) Plaintiff has not filed an amended complaint within the thirty days

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granted in the May 10, 2013 order. Plaintiff was warned that failure to file a complaint or notice

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in compliance with this Court’s orders would result in dismissal of this action.

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The Court has the inherent power to control its docket and may, in the exercise of that
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power, impose sanctions where appropriate, including dismissal of the action. Bautista v. Los

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Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action

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for failure to comply with a pretrial order, the Court must weigh “(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 sanctions.”

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Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (internal quotations and citations

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omitted). These factors guide a court in deciding what to do, and are not conditions that must be

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met in order for a court to take action. Id. (citation omitted).

In re Phenylpropanolamine (PPA) Products

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The public’s interest in expeditious resolution of the litigation and the court’s need to

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manage its docket weigh in favor of dismissal. Id. Plaintiff was ordered to file an amended

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complaint or notify the court of her intention to proceed on the claims found cognizable within

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thirty days of April 12, 2013. After being granted a thirty day extension of time to file an

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amended complaint, Plaintiff has neither filed an amended complaint nor notified the court that

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she wishes to proceed on the claims found to be cognizable. Plaintiff’s failure to comply with the

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orders of the court hinders the court’s ability to move this action towards disposition, and

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indicates that Plaintiff does not intend to diligently litigate this action.

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Since it appears that Plaintiff does not intend to litigate this action diligently there arises a

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rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447,

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1452-53 (9th Cir. 1994). This risk of prejudice may be rebutted by Plaintiff offers an excuse for

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the delay. In re Eisen, 31 F.3d at 1453. The risk of prejudice to the defendants also weighs in

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favor of dismissal.

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The public policy in favor of deciding cases on their merits weighs against dismissal.

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However, it is Plaintiff’s responsibility to move this action forward. This action can proceed no

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further without Plaintiff’s cooperation and compliance with the order at issue, and the action

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cannot simply remain idle on the Court’s docket, unprosecuted. In this instance, the fourth factor

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does not outweigh Plaintiff’s failure to comply with the court’s orders.

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Finally, the Court finds that no other less drastic sanctions are available. Since Plaintiff is
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proceeding in forma pauperis ordering monetary sanctions would be futile.

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Accordingly, it is HEREBY RECOMMENDED that this action be DISMISSED, without
prejudice, for Plaintiff’s failure to prosecute.

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These findings and recommendations are submitted to the district judge assigned to this

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action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen

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(14) days of service of this recommendation, any party may file written objections to these

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findings and recommendations with the Court and serve a copy on all parties. Such a document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The

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district judge will review the magistrate judge’s findings and recommendations pursuant to 28

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U.S.C. § 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified time

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may waive the right to appeal the district judge’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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IT IS SO ORDERED.

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Dated:
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June 18, 2013

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DEAC_Signature-END:

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UNITED STATES MAGISTRATE JUDGE
i1eed4

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