Posey v. Equifax Inc. et al

Filing 19

FINDINGS and RECOMMENDATIONS Recommending Dismissal of 1 Action, with Prejudice, for Failure to Prosecute and Failure to Obey Court Orders; Fourteen Day Deadline signed by Magistrate Judge Barbara A. McAuliffe on 1/10/2017. Referred to Judge Anthony W. Ishii. Objections to F&R due by 1/27/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEREMIAH POSEY,

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Plaintiff,
v.
EQUIFAX, INC., et al.,
Defendants.

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Case No.: 1:16-cv-01322-AWI-BAM
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION,
WITH PREJUDICE, FOR FAILURE TO
PROSECUTE AND FAILURE TO OBEY COURT
ORDERS
(ECF Nos. 94, 96, 100)
FOURTEEN-DAY DEADLINE

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This matter is before the Court on an order for Plaintiff Jeremiah Posey, proceeding pro se, to

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show cause why he has failed to participate in these proceedings and obey the order of this Court and

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why sanctions, up to and including terminating sanctions, should not be imposed for his failure to

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appear at the telephonic status conference and provide his telephone number. A show cause hearing

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was held on January 10, 2017, before Magistrate Judge Barbara A. McAuliffe. Counsel for Defendant

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Equifax Inc., Thomas Quinn, Jr. and Counsel for Defendant Experian Information Solutions, Inc.,

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Jennifer Sun, both appeared telephonically at the hearing. Plaintiff Jeremiah Posey did not appear.

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For the reasons discussed below, the Court recommends that this action be dismissed, with

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prejudice, based on Plaintiff Jeremiah Posey’s failure to prosecute this action and failure to obey

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orders of the Court.
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BACKGROUND

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On September 8, 2016, the Court issued an order requiring the parties to attend an Initial

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Scheduling Conference on December 20, 2016, at 8:30 a.m. in Courtroom 8 (BAM) before the

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undersigned. (Doc. 2). On December 20, 2016, counsel for Defendants appeared at the scheduling

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conference, however, Plaintiff Jeremiah Posey failed to appear. As a result, the scheduling conference

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could not proceed. Further, at the conference, defense counsel informed the Court that Plaintiff had

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refused to provide his telephone number and there had been no verbal communication with Plaintiff

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since the action was filed. Accordingly, on December 20, 2016, the Court issued an order directing

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Plaintiff Jeremiah Posey to show cause why he had failed to participate in these proceedings and obey

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the order of this Court and why sanctions, up to and including terminating sanctions, should not be

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imposed for his failure to appear at the Initial Scheduling Conference and provide his telephone

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number. (Doc. 17). The Court ordered Plaintiff Jeremiah Posey to respond to the order to show cause

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in writing no later than January 5, 2017, and set a show cause hearing for January 10, 2017, at 10:00

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a.m. in Courtroom 8 (BAM) before the undersigned. Plaintiff also was ordered to appear at the show

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cause hearing in person. (Id.).

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To date, Plaintiff Jeremiah Posey has not filed a written response to the Court’s show cause

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order. Plaintiff also failed to appear in person at the show cause hearing on January 10, 2017. At the

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hearing, defense counsel also represented that there has been no communication with Plaintiff

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Jeremiah Posey in the interim between the date set for the Initial Scheduling Conference and the show

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cause hearing.

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LEGAL STANDARD

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Local Rule 110 of the Eastern District of California provides that “[f]ailure of counsel or of a

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party to comply … with any order of the Court may be grounds for imposition by the Court of any and

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all sanctions authorized by statute or Rule or within the inherent power of the Court.” E.D. Cal. R.

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110. A federal court possesses the inherent power to sanction conduct that abuses the judicial process.

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Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991); see also Shead v. Vang, No. 1:09-cv-00006-

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AWI-SKO-PC, 2012 WL 3861243, at * 1 (E.D. Cal. Sept. 5, 2012) (federal courts have the inherent

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authority to sanction conduct abusive of the judicial process; dismissal with prejudice is an available
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sanction). Further, “[d]istrict courts have inherent power to control their dockets,” and in exercising

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that power, may impose sanctions including dismissal of an action. Thompson v. Housing Authority of

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Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based

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on a party’s failure to prosecute an action, failure to obey a court order, or failure to comply with local

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

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

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comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th

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Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court

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apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for

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failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)

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(dismissal for 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 or for failure to obey court

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orders, the district court is required to weigh 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 the

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

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of less drastic sanctions. Carey, 856 F.2d at 1440 (quotation marks and citation omitted); accord

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Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA)

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Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006); Pagtalunan v. Galaza, 291 F.3d

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639, 642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at 1260-61). These factors guide a court in deciding

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what to do, and are not conditions that must be met in order for a court to take action. In re PPA, 460

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F.3d at 1226 (citation omitted).

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DISCUSSION

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“The public’s interest in expeditious resolution of litigation always favors dismissal.”

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Pagtalunan, 291 F.3d at 642 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir.

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1999)). Here, the action has been pending in this Court for more than four months, but due to

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Plaintiff’s repeated failure to appear, cannot move forward to resolution. Plaintiff is obligated to

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comply with the Court’s orders and the Federal Rules of Civil Procedure, and was informed of the

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need to appear at the Initial Scheduling Conference. Despite Plaintiff’s failure to appear, the Court
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nonetheless permitted Plaintiff an opportunity to appear and to prosecute this action by issuing its

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show cause order. The Court’s effort was met with silence from Plaintiff, and the Court cannot

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effectively manage its docket if a party ceases litigating the case. Thus, both the first and second

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factors weigh in favor of dismissal.

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With regard to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in

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and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “[u]nnecessary delay

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inherently increases the risk that witnesses’ memories will fade and evidence will become stale.” Id.

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In this instance, it is Plaintiff’s failure to prosecute this case and to comply with the Court’s orders that

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is causing delay. Therefore, the third factor weighs in favor of dismissal.

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Because public policy favors disposition on the merits, this factor usually weighs against

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dismissal. Id. at 643. However, “this factor lends little support to a party whose responsibility it is to

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move a case toward disposition on the merits but whose conduct impedes progress in that direction,”

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which is the case here. In re PPA, 460 F.3d at 1228.

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Finally, as for the availability of lesser sanctions, at this stage in the proceedings there is little

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available to the Court which would constitute a satisfactory lesser sanction while protecting the Court

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and parties from further unnecessary expenditure of their resources. Plaintiff’s failure to appear

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renders monetary sanctions of little use, and given the stage of the proceedings, the preclusion of

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evidence or witnesses is likely to have no effect given that Plaintiff has ceased litigating his case.

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Moreover, Plaintiff was warned expressly that his failure to respond to the show cause order or his

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failure to appear at the January 10, 2017 hearing would result in the imposition of sanctions, including

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a recommendation of dismissal. (Doc. 17 at 3). The court’s warning to a party that failure to obey the

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

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Ferdik, 963 F.2d at 1262; Malone, 833 at 132-133; Henderson, 779 F.2d at 1424.
CONCLUSION AND RECOMMENDATION

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For the reasons stated, the Court finds that dismissal is the appropriate sanction and HEREBY

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RECOMMENDS that this action be dismissed, with prejudice, for failure to prosecute and for failure

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to obey court orders.

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

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14)

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days after being served with these Findings and Recommendations, any party may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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

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specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” on

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appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d

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1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 10, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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