Garcia-Cardenas v. Immigration Legal Services, APC

Filing 5

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's complaint be DISMISSED. Matter referred to Judge Ishii. Objections to F&R due within twenty-one (21) days of service of this recommendation; signed by Magistrate Judge Sheila K. Oberto on 10/29/2013. (Timken, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HERMILA GARCIA-CARDENAS,
Plaintiff,

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Case No. 1:13-cv-01065-AWI-SKO
FINDINGS AND RECOMMENDATIONS
THAT PLAINTIFF'S COMPLAINT BE
DISMISSED

v.
IMMIGRATION LEGAL SERVICES, APC,

(Doc. 1)

Defendant.
_____________________________________

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I.

INTRODUCTION

On July 12, 2013, Plaintiff Hermila Garcia-Cardenas ("Plaintiff") filed a complaint against

19 Defendant Immigration Legal Services, APC ("Defendant"). (Doc. 1.) Plaintiff is proceeding pro
20 se and in forma pauperis, asserting that Defendant failed to provide certain agreed-upon legal
21 services to her parents. Plaintiff's complaint was dismissed with thirty days leave to amend.
22 Plaintiff has failed to file an amended complaint.

For the reasons set forth below, it is

23 RECOMMENDED that this action be dismissed without prejudice to refiling in state court.
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II.

DISCUSSION

Local Rule 110 provides that "[f]ailure of counsel or of a party to comply with these Rules

26 or with any order of the Court may be grounds for the imposition by the Court of any and all
27 sanctions . . . within the inherent power of the Court." District courts have the inherent power to
28 control their dockets and "[i]n the exercise of that power they may impose sanctions including,

1 where appropriate . . . dismissal." Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986).
2 A court may dismiss an action, with prejudice, based on a party's failure to prosecute an action,
3 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran,
4 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v.
5 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order
6 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988)
7 (dismissal for failure to comply with local rule requiring pro se plaintiff to keep court apprised of
8 address); Malone v. U.S. Postal Serv., 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure
9 to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424-25 (9th Cir. 1986)
10 (dismissal for failure to lack 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

12 order, or failure to comply with local rules, the court must consider several factors: (1) the public's
13 interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the
14 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their
15 merits; and (5) the availability of less drastic alternatives. Pagtalunan v. Galaza, 291 F.3d 639,
16 642-43 (9th Cir. 2002); see also Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24;
17 Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. "These factors are
18 not a series of conditions precedent before the judge can do anything, but a way for a district judge
19 to think about what to do." In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217,
20 1226 (9th Cir. 2006) (citation omitted).
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Here, dismissal of Plaintiff's complaint is appropriate. In considering the first factor, "[t]he

22 public's interest in expeditious resolution of litigation always favors dismissal." Pagtalunan,
23 291 F.3d at 642 (citation omitted). Given Plaintiff's failure to file an amended complaint, the first
24 factor weighs in favor of dismissing the action.
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The second factor, the court's need to manage its docket, also weighs in favor of dismissal.

26 "The court cannot manage its docket if it maintains cases in which a plaintiff fails to litigate his
27 case. The court's limited resources must be spent on cases in which the litigants are actually
28 proceeding." Lopez v. Washington Mut. Bank, F.A., No. 1:09-CV-1838 AWI -JLT, 2010 WL
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As for the third factor, the risk of prejudice, the fact that a lawsuit is pending against a

3 defendant who has not yet been ordered to respond "is not sufficiently prejudicial in and of itself
4 to warrant dismissal." Pagtalunan, 291 F.3d at 642; Yourish v. Cal. Amplifier, 191 F.3d 983, 991.
5 However, "[u]nnecessary delay inherently increases the risk that witnesses' memories will fade
6 and evidence will become stale." Pagtalunan, 291 F.3d at 642. As such, any risk of prejudice to
7 Defendant also weighs in favor of dismissal.
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The fourth factor of public policy favoring disposition on the merits normally weighs

9 against dismissal. Id. at 643. "At the same time, a case that is stalled or unreasonably delayed by
10 a party's failure to comply with deadlines . . . cannot move forward toward resolution on the
11 merits. Thus, [the Ninth Circuit has] also recognized that this factor lends little support to a party
12 whose responsibility it is to move a case toward disposition on the merits but whose conduct
13 impedes progress in that direction." In re PPA, 460 F.3d at 1228 (citation omitted). As such, this
14 factor has little weight in cases such as this where the plaintiff essentially appears to be unable or
15 unwilling to proceed with the action. See id.; Lopez, 2010 WL 2629039, at *2.
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Regarding the fifth factor, the availability of lesser sanctions, "[t]he district court abuses its

17 discretion if it imposes a sanction of dismissal without first considering the impact of the sanction
18 and the adequacy of less drastic sanctions." In re PPA, 460 F.3d at 1228. The court must consider
19 the "feasibility of less drastic sanctions and explain why alternative sanctions would be
20 inadequate," whether there was an "alternative methods of sanctioning or curing the malfeasance
21 before ordering dismissal," and whether "the court warn[ed] the plaintiff of the possibility of
22 dismissal before actually ordering dismissal." Id. at 1229 (citations omitted). Here, Plaintiff was
23 expressly warned that dismissal would result from noncompliance with the Court's order. The
24 Court's August 27, 2013, order stated that "[i]f Plaintiff fails to file an amended complaint or fails
25 to cure the deficiencies identified . . . , the Court will recommend that the complaint be dismissed
26 with prejudice." (Doc. 4, 5:2-4.) Under these circumstances, there is no alternative to dismissal.
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III.

CONCLUSION AND RECOMMENDATION

For the reasons stated above, IT IS HEREBY RECOMMENDED that this case be

3 dismissed for Plaintiff's failure to file an amended complaint pursuant to the Court's August 27,
4 2013, order. However, such dismissal should be without prejudice to re-filing the complaint in
5 state court. See generally Trew v. Int'l Game Fish Ass'n, Inc., 404 F. Supp. 2d 1173, 1179 (N.D.
6 Cal. 2005).
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These findings and recommendations are submitted to the district judge assigned to this

8 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within twenty-one
9 (21) days of service of this recommendation, any party may file written objections to these
10 findings and recommendations with the Court and serve a copy on all parties. Such a document
11 should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The
12 district judge will review the magistrate judge's findings and recommendations pursuant to
13 28 U.S.C. § 636(b)(1)(C).

The parties are advised that failure to file objections within the

14 specified time may waive the right to appeal the district judge's order. Martinez v. Ylst, 951 F.2d
15 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:

October 29, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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