Chavez v. Access Capital Services, Inc.

Filing 8

FINDINGS and RECOMMENDATIONS Regarding the Dismissal of This Action; Objections, if Any, Due no Later Than August 1, 2014 signed by Magistrate Judge Gary S. Austin on 7/18/2014. (Martinez, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EVELYN CHAVEZ,

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No. 1:13-cv-01037-AWI-GSA

Plaintiff,
v.
ACCESS CAPITAL SERVICES, INC.,
Defendant.

FINDINGS AND RECOMMENDATIONS
REGARDING THE DISMISSAL OF THIS
ACTION
OBJECTIONS, IF ANY, DUE NO LATER
THAN AUGUST 1, 2014

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INTRODUCTION
On June 16, 2014, the undersigned issued an order dismissing Plaintiff Evelyn Chavez’s

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(“Plaintiff”) complaint with leave to amend. (Doc. 6). Pursuant to the order, Plaintiff was
required to file any amended complaint by July 10, 2014. To date, no amended complaint has

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been filed. Therefore, for the reasons discussed below, the undersigned RECOMMENDS that

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this action be dismissed for failure to comply with a court order and to prosecute this action.

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DISCUSSION
Local Rule 110 provides that “a failure of counsel or of a party to comply with the Court’s

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Local Rules or with any order of the Court may be grounds for the imposition by the Court of any
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and all sanctions . . . within the inherent power of the Court.@ District courts have the inherent

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power to control their dockets and Ain the exercise of that power, they may impose sanctions

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including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 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 the court’s

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

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noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)

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(dismissal for failure to comply with an order requiring amendment of complaint); Carey v. King,

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856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring
pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128,

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130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779
F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with

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local rules). In determining whether to dismiss an action for lack of prosecution, failure to obey a

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

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

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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik,
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963 F.2d at 1260-61; Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; Henderson, 779
F.2d at 1423-24.
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 because

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there is no indication that the Plaintiff intends to prosecute this action. The third factor, risk of

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

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from any unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524
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(9th Cir. 1976). The fourth factor, public policy favoring disposition of cases on their merits, is

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greatly outweighed by the factors in favor of dismissal. Finally, a court’s warning to a party that

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his failure to comply with the court’s order will result in dismissal satisfies the “consideration of

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alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779

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F.2d at 1424. The Court’s order permitting Plaintiff to file an amended complaint was clear that

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failure to file an amended complaint within the time specified in the order would result in the

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dismissal of this action.1 Doc. 6 at 9.

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RECOMMENDATION

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In light of the foregoing, IT IS HEREBY RECOMMENDED that this action be
DISMISSED for Plaintiff’s failure to comply with a court order and to prosecute this action, and

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that the Clerk of the Court be directed to close this action.
These Findings and Recommendations are submitted to United States District Judge

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Anthony W. Ishii, pursuant to 28 U.S.C. § 636(b)(1)(B). Within fourteen (14) days from the

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date of these Findings and Recommendations, Plaintiff may file written objections with the Court.

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The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” The parties are advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

July 18, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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Furthermore, for the reasons set forth in this Court’s order dismissing Plaintiff’s original complaint, Doc. 6,
Plaintiff’s has failed to state a claim upon which relief may be granted.

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