Lee v. Vandenberghe Properties

Filing 9

ORDER to DISMISS ACTION, signed by District Judge Lawrence J. O'Neill on 3/7/13. CASE CLOSED.(Verduzco, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MAY LEE LEE,

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CASE NO. CV F 13-0180 LJO MJS
Plaintiff,

ORDER TO DISMISS ACTION

vs.

(Doc. 8.)

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VANDENBERGHE PROPERTIES,
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Defendant.
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BACKGROUND

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This Court’s February 13, 2013 order (“February 13 order”) dismissed with leave to amend

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plaintiff May Lee Lee’s (“Ms. Lee’s”) operative complaint (“complaint”) and required Ms. Lee, no later

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than March 6, 2013, to file and serve an amended complaint which satisfies federal pleading

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requirements. The February 13 order “ADMONISHES Ms. Lee that this Court will dismiss this

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action if Ms. Lee fails to comply with this order and fails to file timely an amended complaint.”

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(Bold in original.) Ms. Lee disobeyed the February 13 order and failed to file an amended complaint.

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DISCUSSION

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Failure To Comply With Orders

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This Court’s Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these
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[Local] Rules or with any order of the Court may be grounds for the imposition by the Court of any and

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all sanctions . . . within the inherent power of the Court.” District courts have inherent power to control

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their dockets and “in the exercise of that power, they may impose sanctions including, where appropriate

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. . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may

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dismiss an action, with prejudice, based on a party’s failure to obey a court order or local rules. See, e.g.,

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

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Ferdik v. 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) (dismissal

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

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

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

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and failure to comply with local rules).

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In determining whether to dismiss an action for failure to comply with a court order or local rules

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or for lack of prosecution, a court must consider several factors: (1) the public’s interest in expeditious

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

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(4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic

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alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130;

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Ferdik, 963 F.2d at 1260-1261; Ghazali, 46 F.3d at 53.

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In this case, the public’s interest in expeditiously resolving this litigation and the Court’s interest

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in managing its docket weigh in favor of dismissal as Ms. Lee indicates a lack of interest to further

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litigate or prosecute legitimate claims, if any, she may have. The third factor -- risk of prejudice to

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defendant -- also weighs in favor of dismissal, since a presumption of injury arises from the occurrence

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of unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976).

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The fourth factor -- public policy favoring disposition of cases on their merits -- is greatly outweighed

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by the factors in favor of dismissal discussed herein. Finally, a court’s warning to a party that its failure

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to obey the court’s order will result in dismissal satisfies the “consideration of alternatives” requirement.

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Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-133; Henderson, 779 F.2d at 1424. The February

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13 order “ADMONISHES Ms. Lee that this Court will dismiss this action if Ms. Lee fails to comply
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with this order and fails to file timely an amended complaint.” (Bold in original.) Ms. Lee offers

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nothing to support pursuit of her purported claims. As such, Ms. Lee has failed to comply with the

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February 13 order despite adequate warning that dismissal will result from disobedience of this Court’s

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order.

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Moreover, the February 13 order demonstrates that the complaint lacks a viable claim. This

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Court construes absence of a meaningful response to the February 13 order as a concession that Ms. Lee

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lacks viable claims. As detailed in the February 13 order, the complaint lacks cognizable claims or legal

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theories upon which to support liability.

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CONCLUSION AND ORDER

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For the reasons discussed above, this Court DISMISSES this action in its entirety and DIRECTS

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the clerk to enter judgment pursuant to this order and to close this action.

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IT IS SO ORDERED.

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Dated:

March 7, 2013

/s/ Lawrence J. O'Neill
66h44d
UNITED STATES DISTRICT JUDGE

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