Reddy v. Precyse Solutions, LLC et al

Filing 19

ORDER DISMISSING ACTION for Failure to Prosecute signed by District Judge Anthony W. Ishii on 12/5/2013. CASE CLOSED. (Jessen, A)

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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,
ORDER DISMISSING ACTION FOR FAILURE
TO PROSECUTE

v.
PRECYSE SOLUTIONS LLC, et al.,
Defendants.

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I.

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PROCEDURAL HISTORY

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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, the Magistrate Judge screened Plaintiff’s complaint, and the Magistrate Judge issued an

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order requiring Plaintiff to either file an amended complaint or notify the Court that she wished to

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proceed on the claims found to be cognizable in the complaint. (ECF No. 5.) On May 10, 2013,

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an order issued granting Plaintiff’s request for a thirty day extension of time to file an amended

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

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documents electronically. (ECF No. 9.)

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On May 30, 2013, Plaintiff filed a motion for the undersigned to reconsider the order

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denying appointment of counsel and electronic filing of documents. (ECF No. 10.) Plaintiff’s

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motion for reconsideration was denied on June 11, 2013. (ECF No. 11.) On June 18, 2013, the
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Magistrate Judge issued a findings and recommendation recommending dismissing this action

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due to Plaintiff’s failure to file an amended complaint in compliance with the May 10, 2013

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order. (ECF No. 12.) Plaintiff filed objections to the findings and recommendations on July 5,

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2013; a motion to set aside and vacate the June 11, 2013 order and a motion to stay this action on

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July 8, 2013. (ECF Nos. 13, 14, 15.)

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On October 30, 2013, the undersigned issued an order denying Plaintiff’s motion to set

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aside and vacate the June 11, 2013 order and motion to stay this action and declined to adopt the

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Magistrate Judge’s findings and recommendations. (ECF No. 18.) In the order, Plaintiff was

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granted one final opportunity to file an amended complaint or inform the court of her intent to

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proceed on the claims found to be cognizable in the complaint. Plaintiff was advised that failure

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to comply with the order would result in this action being dismissed without prejudice.

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II.

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LEGAL STANDARD

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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.” In re Phenylpropanolamine (PPA) Products

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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).

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III.

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DISCUSSION

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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 has twice been ordered to file an

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amended complaint or notify the court of her intention to proceed on the claims found cognizable.
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Plaintiff was granted a thirty day extension of time to file an amended complaint. Plaintiff has

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neither filed an amended complaint nor notified the court that she wishes to proceed on the claims

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found to be cognizable. Plaintiff’s failure to comply with the orders of the court hinders the

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court’s ability to move this action towards disposition, and indicates that Plaintiff does not intend

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to diligently litigate this action.

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Because it appears that Plaintiff is unable or unwilling to properly diligently litigate this

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action, there arises a rebuttable presumption of prejudice to the defendants in this action. In re

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Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994). At this time, Plaintiff has neither complied with

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the Court’s October 30, 2013 order or sought an extension of time to comply. The risk of

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prejudice to the Defendants also weighs in favor of dismissal.
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
proceeding in forma pauperis, ordering monetary sanctions would be futile.

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IV.

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CONCLUSION AND ORDER

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Based on the foregoing, it is HEREBY ORDERED that this action is DISMISSED,

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without prejudice. The Clerk of the Court is DIRECTED to close this case.

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IT IS SO ORDERED.
Dated: December 5, 2013
SENIOR DISTRICT JUDGE

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