Osegueda et al v. Stanislaus County Public Safety Center et al

Filing 79

FINDINGS and RECOMMENDATIONS recommending dismissal of action for failure to obey a court order signed by Magistrate Judge Barbara A. McAuliffe on 4/12/2022. Referred to Judge Jennifer L. Thurston; Objections to F&R due within 14-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARMANDO OSEGUEDA, et al.,

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Plaintiffs,

Case No. 1:16-cv-01218-JLT-BAM
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION
FOR FAILURE TO OBEY A COURT ORDER

v.
STANISLAUS COUNTY PUBLIC
SAFETY CENTER, et al.,

(Docs. 50, 74)
Defendants.

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Findings and Recommendations

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I.

Background

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Plaintiffs Armando Osegueda and Robert Palomino initiated this action on August 16,

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2016. (Doc. 1.) Plaintiffs’ Second Amended Complaint, filed on February 5, 2017, added

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Plaintiffs David Lomeli and Jairo Hernandez. (Doc. 22.) On January 29, 2019, the Court

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approved the parties’ stipulation to stay this matter pending resolution of the state criminal

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proceedings against Plaintiffs Armando Osegueda and Robert Palomino. (Doc. 50.) The Court

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ordered Plaintiffs to file a written status report every ninety (90) days notifying the Court of the

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status of the criminal matter. (Id.)

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On December 27, 2019, after no status reports had been filed, the Court issued an Order to

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Show Cause why sanctions should not be imposed for failure to comply with an order of the

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Court. (Doc. 53.) Plaintiffs were required to file either a written response or the required status
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report by January 10, 2020. (Id.) Plaintiffs did not file a written response or a status report in

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compliance with the Court’s order. Accordingly, on January 29, 2020, the Court ordered

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Plaintiffs’ counsel Amber Hope Gordon to personally appear before the Court on February 12,

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2020, to show cause why the action should not be dismissed for failure to prosecute and failure to

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comply with the Court’s orders. (Doc. 56.) Counsel was permitted to comply with the Court’s

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January 29, 2020 Order to Show Cause by filing the required status report by February 10, 2020.

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(Id.) On January 29, 2020, Plaintiffs filed the required status report, (Doc. 54), and the Court

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discharged the Orders to Show Cause issued December 27, 2019, and January 29, 2020, (Doc.

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No. 60). Counsel was cautioned that any future failure to comply with an order of the Court

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would result in the imposition of sanctions. (Id.)
On May 4, 2020, after Plaintiffs again failed to file a status report, the Court issued a third

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Order to Show Cause why sanctions should not be imposed for failure to obey a court order.

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(Doc. 60.) Plaintiffs were ordered to respond in writing within fourteen (14) days and were

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permitted to comply with the Order to Show Cause by filing the required status report. (Id.) On

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May 22, 2020, Plaintiffs filed a status report. (Doc. 61.) The Court subsequently discharged the

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Order to Show Cause but noted that the status report was filed well after the deadline for a

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response to the Order to Show Cause. (Doc. 62.) Counsel was again warned that future failures to

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comply with the Court’s orders would result in the imposition of sanctions. (Id.)

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On August 26, 2020, after Plaintiffs again failed to timely file a status report, the Court

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issued a fourth order requiring Plaintiffs’ counsel to appear before the Court to show cause why

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sanctions should not be imposed for failure to obey a court order. (Doc. 63.) On August 27, 2020,

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Plaintiffs filed the required status report stating that Plaintiffs Osegueda and Palomino’s criminal

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cases are ongoing. (Doc. 64.) Counsel for Plaintiff further provided a declaration explaining that

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her failure to file a timely status report was due to the death of her father. (Doc. 64-1.)

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Although Plaintiffs were not ordered to respond in writing or permitted to comply with the

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Order to Show Cause by filing a status report, the Court nonetheless discharged the show cause

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order in light of the contents of Ms. Gordon’s declaration. (Doc. 65.) However, the Court noted

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that Plaintiffs’ status reports had been tardy on multiple occasions and several orders to show
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cause had been issued in order to secure Plaintiffs’ compliance with applicable deadlines. The

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Court observed that counsel’s action had caused the Court to unnecessarily expend its resources

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to gain counsel’s compliance with orders. The Court strongly cautioned Plaintiffs’ counsel

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against future failures to comply with the Court’s orders as such failures would likely result in the

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imposition of sanctions. (Id. at 65.)

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On November 23, 2020, Plaintiffs filed a status report indicating that Plaintiffs Osegueda

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and Palomino’s criminal cases were ongoing. (Doc. No. 66.) The status report was dated January

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22, 2020. (Id. at 2.)

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On April 6, 2021, the Court issued an Order requiring Counsel for Plaintiff to appear in

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person to show cause why sanctions should not be imposed for failure to obey a Court order when

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Counsel again failed to file the required status report. (Doc. 67.) On April 7, 2021, Counsel for

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Plaintiff filed a Status Report indicating that the criminal cases for Plaintiffs Osegueda and

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Palomino remain ongoing. (Doc. 68.)

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On April 19, 2021, the Court held a hearing on the Order to Show cause. Counsel Amber

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Gordon appeared and explained that she failed to file the status report due to a scheduling error

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and due to her father’s death and funeral. Based on counsel’s representations, the Court

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discharged the April 6, 2021 Order to Show Cause. However, the Court warned as follows:

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“Counsel is strongly cautioned that any further failures to comply with a court order will

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result in a recommendation to the District Judge that this matter be dismissed.” (Doc. 70.)

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On June 13, 2021, Plaintiffs filed a status report. (Doc. 71.)

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On November 9, 2021, Plaintiffs filed a status report and motion to continue the stay.

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(Docs. 72, 73.) The documents were identical, and the motion was terminated as it was a status

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report. The Court indicated that the stay of this action would remain in place with the parties

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filing status reports every ninety (90) days. (Doc. 74.)

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On December 14, 2021, Plaintiffs filed a status report indicating that the criminal cases of
Plaintiffs Osegueda and Palomino were ongoing. (Doc. 76.)
More than ninety days have elapsed since the last submission of a status report on
December 14, 2021, and Plaintiffs again have failed to file a timely written status report.
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II.

Legal Standard

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

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any order of the Court may be grounds for imposition by the Court of any and all sanctions . . .

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

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dockets and “[i]n the exercise of that power they may impose sanctions including, where

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

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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, 46

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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); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987)

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(dismissal for failure to comply with court order).

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In determining whether to dismiss an action, the Court must consider several factors: (1)

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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

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cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779

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F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).

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III.

Discussion

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Plaintiffs’ status report is again overdue. As detailed above, Plaintiffs’ status reports have

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been tardy on multiple occasions and multiple orders to show cause have been issued in order to

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secure Plaintiffs’ compliance with applicable deadlines and court orders. Counsel’s dilatory

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actions have caused the Court to unnecessarily expend its resources on multiple occasions to gain

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counsel’s compliance with orders over the years. Despite repeated warnings, Plaintiffs continue

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to disregard the relevant deadlines and court directives. The Court cannot effectively manage its

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docket if Plaintiffs cease complying with Court orders without Court intervention. Thus, the

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Court finds that both the first and second factors weigh in favor of dismissal.

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The third factor, risk of prejudice to the defendant, also weighs in favor of dismissal, as a

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.
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Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). Absent status updates, the Court cannot

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determine whether the stay should remain in place or if the litigation may resume.

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The fourth factor usually weighs against dismissal because public policy favors

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disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However,

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“this factor lends little support to a party whose responsibility it is to move a case toward

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disposition on the merits but whose conduct impedes progress in that direction.” In re

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Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 2006) (citation

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omitted). As indicated, Plaintiffs’ failure to provide timely updates impedes the Court’s ability to

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determine whether the stay should be lifted, and the matter prosecuted.

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Finally, the Court’s warning to a party that failure to obey the Court’s order will result in

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dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262;

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Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s April 19, 2021 order

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expressly warned counsel that any further failures to comply with a court order would result in a

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recommendation for dismissal of this action. (Doc. 70.) Thus, Plaintiffs had adequate warning

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that dismissal could result from noncompliance.

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Additionally, at this stage in the proceedings there is little available to the Court that

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would constitute a satisfactory lesser sanction while protecting the Court from further

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unnecessary expenditure of its scarce resources. Counsel has been repeatedly warned about the

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imposition of sanctions but has disregarded the Court’s orders, suggesting that monetary

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sanctions would be of little use, and the preclusion of evidence or witnesses is likely to have no

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effect given that litigation of the matter has been stalled by the ongoing criminal proceedings.

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IV.

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For the reasons stated, it is HEREBY RECOMMENDED that this action be dismissed

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Conclusion and Recommendation

based on Plaintiffs’ failure to obey the Court’s orders.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen (14) days after being served with these Findings and Recommendations, Plaintiffs may

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file written objections with the Court. The document should be captioned “Objections to
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Magistrate Judge’s Findings and Recommendations.” Plaintiffs are advised that failure to file

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objections within the specified time may result in the waiver of the “right to challenge the

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

April 12, 2022

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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