Dhawan v. Ruelas et al

Filing 5

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Barbara A. McAuliffe on 3/25/2013 recommending that 3 Amended Complaint filed by Ermenejilda Dhawan be dismissed. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 4/29/2013. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ERMENEJILDA DHAWAN,

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CASE NO. 1:13-0133 LJO BAM

Plaintiff,

FINDINGS AND
RECOMMENDATIONS THAT
PLAINTIFFS’ COMPLAINT BE
DISMISSED

v.
JUAN RUELAS, et al.,

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Defendants.

OBJECTIONS DUE: 30 DAYS

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/
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I.

INTRODUCTION

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On January 28, 2013, Plaintiff Ermenejilda Dhawan (“Plaintiff”), proceeding pro se and in

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forma pauperis, filed this action against multiple Defendants (“Defendants”) challenging the validity

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of foreclosure on certain residential real property. (Doc. 1). On February 1, 2013, Plaintiff filed an

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amended complaint. First Amended Complaint (“FAC”), (Doc.3). On February 6, 2013, the Court

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reviewed Plaintiff’s amended complaint and dismissed it without prejudice. Plaintiff was granted

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30 days to file a second amended complaint. (Doc. 4). Plaintiff was advised that failure to file a

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second amended complaint within the allotted time period would result in a recommendation of

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dismissal. The time for complying with the Court’s order has now expired and Plaintiff has failed

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to file a second amended complaint.

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II.

DISCUSSION

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Local Rule 110 provides that “[f]ailure 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 “[i]n the exercise of that power they may impose sanctions, including,

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where appropriate . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986).

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A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

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failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran,

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46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,

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963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for

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failure to comply with local rule requiring pro se plaintiff to keep court apprised of address); Malone

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v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with

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court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to lack

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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

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order, or failure to comply with local rules, the court must consider several factors: (1) the public’s

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

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of 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. 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 of

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cases on their merits–is greatly outweighed by the factors in favor of dismissal discussed herein.

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Finally, a court’s warning to a party that his failure to obey the court’s order will result in dismissal
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satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d

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at 132-33; Henderson, 779 F.2d at 1424. The Court’s February 6, 2013, order expressly stated that

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failure to amend the complaint would result in a recommendation of dismissal. (Doc. 4). Thus,

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Plaintiff had adequate warning that dismissal would result from her noncompliance with the Court’s

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order.

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III.

CONCLUSION AND RECOMMENDATION

Accordingly, the Court HEREBY RECOMMENDS that the Complaint be DISMISSED
pursuant to Local Rule 110, for Plaintiff’s failure to obey the Court’s Order of February 6, 2013.

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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 fifteen (15)

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days of service of this recommendation, any party may file written objections to these findings and

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

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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge

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will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C.

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§ 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may

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waive the right to appeal the district judge’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
10c20k

March 25, 2013

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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