Fidelity & Guaranty Life Insurance Company v. Chance et al

Filing 7

Findings and Recommendations dismissing the 1 action for Plaintiff's failure to prosecute and failure to obey the Court's orders, signed by Magistrate Judge Jennifer L. Thurston on 11/12/2015. Matter referred to Judge O'Neill. Objections to F&R due by 11/30/2015. (Rosales, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FIDELITY & GUARANTY LIFE
INSURANCE COMPANY,

)
)
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Plaintiff,
)
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v.
)
LESLIE J. CHANCE, JESSICA BULLMAN, )
)
)
Defendants.
)

Case No.: 1:15-cv-00980 LJO JLT
FINDINGS AND RECOMMENDATIONS
DISMISSING THE ACTION FOR PLAINTIFF’S
FAILURE TO PROSECUTE AND FAILURE TO
OBEY THE COURT’S ORDERS

Fidelity & Guaranty Life Insurance Company initiated this action by filing a complaint in

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interpleader on June 29, 2015. (Doc. 1) Fidelity insured the life of Todd Chance, who was murdered

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on August 25, 2013. Id. at 1-2. Because the primary beneficiary was implicated, though not charged,

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in the murder, Fidelity alleges that it is uncertain as to whether the primary beneficiary or the

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contingent beneficiary should receive the insurance proceeds. (Doc. 1 at 3)

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The same day Plaintiff filed the complaint, the Court issued summonses to the Defendants—the

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primary and contingent beneficiaries. (Doc. 3) However, Plaintiff has failed to file proof of service of

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the summons and complaint on either defendant. Thus, on October 1, 2015, the Court ordered Plaintiff

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to show cause why the matter should not be dismissed for its failure to serve process. (Doc. 6)

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Nevertheless, Plaintiff failed to respond. Now, more than 120 days have passed since the filing of the

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complaint without service and because Plaintiff has failed to respond to the Court’s order, the Court

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recommends the matter be DISMISSED without PREJUDICE.
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I.

Failure to Prosecute and Obey the Court’s Orders
The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a

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party to comply 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.” LR 110. “District courts have inherent

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power to control their dockets,” and in exercising that power, a court may impose sanctions including

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dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir.

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1986). A court may dismiss an action based upon a party’s failure to obey a court order, failure to

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prosecute an action, or failure to comply with local rules. See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258,

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1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of

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complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to

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comply with a court order).

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II.

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Discussion and Analysis
To determine whether to dismiss an action for failure to prosecute, failure to obey a court

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order, or failure to comply with the Local Rules, the Court must consider several factors, including:

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

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

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on their merits; and (5) the availability of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see

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also Ferdik, 963 F.2d at 1260-61; Thomspon, 782 F.2d at 831.

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

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managing its docket weigh in favor of dismissal. Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir.

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1999) (“The public’s interest in expeditious resolution of litigation always favors dismissal”); Ferdik,

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963 F.2d at 1261 (recognizing that district courts have inherent interest in managing their dockets

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without being subject to noncompliant litigants). The risk of prejudice to the defendant also weighs in

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favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in

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prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976).

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Notably, Plaintiff has failed to file proof of serve of the summons and complaint on either

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defendant and failed to respond to the Court’s order to show cause. Likewise, neither Defendant has

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appeared in the action. The Court warned Plaintiff that failure to serve the defendants in a timely
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fashion “may result in the imposition of sanctions, including the dismissal of unserved defendants.”

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(Doc. 4 at 4) Further, the Court warned Plaintiff that an action may be dismissed if the party fails to

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prosecute the action or obey a court order. Id. at 8.
The warnings to Plaintiff that dismissal would result from noncompliance with the Court’s

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orders satisfy the requirement that the Court consider less drastic measures. Ferdik, 963 F.2d at 1262;

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Henderson, 779 F.2d at 1424. Given these facts, the policy favoring disposition of cases on their merits

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is outweighed by the factors in favor of dismissal.

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IV.

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Findings and Recommendations
Plaintiff has failed to prosecute this action and failed to comply with the Court’s orders dated

June 29, 2015 (Doc. 4) and October 1, 2015 (Doc. 6).

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Accordingly, IT IS HEREBY RECOMMENDED:

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1.

This action be DISMISSED WITHOUT PREJUDICE; and

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The Clerk of Court be DIRECTED to close this matter.

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These Findings and Recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local

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Rules of Practice for the United States District Court, Eastern District of California. Within 14 days

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after being served with these Findings and Recommendations, Plaintiff may file written objections

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with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

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

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Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014).

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IT IS SO ORDERED.
Dated:

November 12, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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