Glass v. Remondi

Filing 11

ORDER DISMISSING ACTION for Failure to Prosecute and Failure to Obey Court Orders signed by District Judge Dale A. Drozd on 05/16/2017. CASE CLOSED.(Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES L. GLASS, JR.,

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No. 1:17-cv-00003-DAD-BAM

Plaintiff,
v.
NAVIENT SOLUTIONS, INC.,

ORDER DISMISSING ACTION FOR
FAILURE TO PROSECUTE AND FAILURE
TO OBEY COURT ORDERS

Defendant.

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On February 21, 2017, the court issued an order granting defendant John F. Remondi’s

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motion to dismiss and granting Navient Solutions, Inc.’ motion to intervene as the proper

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defendant in the matter. (Doc. No. 8.) In that order, the court directed plaintiff James Glass, Jr.

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to file an amended complaint or, alternatively, to voluntarily dismiss this action pursuant to

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Federal Rule of Civil Procedure 41(a)(1). (Id. at 5.) The court noted that “[a]t the hearing on this

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motion counsel for Mr. Remondi and NSI reported that plaintiff had recently filed a notice of

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dismissal in the Kern County Superior Court where this action had been pending prior to its

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removal to this court which counsel had interpreted as an indication that plaintiff no longer

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wished to pursue this action.” (Id. at 5 n.2.) Plaintiff, however, never filed an amended

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complaint in this action, voluntarily dismissed the action, or otherwise contacted the court.

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On March 30, 2017, the court issued an order requiring plaintiff to show cause on or

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before April 28, 2017, “why sanctions should not be imposed due to [plaintiff’s] failure to comply
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the court’s February 21, 2017 order.” (Doc. No. 9 at 2.) The court warned in the order that

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“should [plaintiff] fail to respond to this order to show cause in writing, as required, this action

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will be dismissed for failure to prosecute and failure to obey the court’s orders.” (Id.) The time

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to do so has now passed and plaintiff has failed to respond to the court’s order to show cause. In

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light of plaintiff’s repeated failures to timely respond to orders of this court, it appears that he

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does not wish to prosecute this action.

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Analysis

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The factors to be weighed in determining whether to dismiss a case for lack of prosecution

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are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need to

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manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring

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disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of

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El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.

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1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that

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should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d

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at 1260.

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Failure of a party to comply with the any order of the court “may be grounds for

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imposition by the Court of any and all sanctions authorized by statute or Rule or within the

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inherent power of the Court.” Local Rule 110. Any individual representing himself or herself

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without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local

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Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable

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rules and law may be grounds for dismissal or any other sanction appropriate under the Local

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Rules. Id.

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Here, the court imposed deadlines for responding to the court orders and also warned

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plaintiff that if he did not comply, this action would be dismissed. The court has considered

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alternative measures. However, despite plaintiff having been warned that his failure to respond

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would result in dismissal, he has repeatedly failed to abide by court ordered deadlines.

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Furthermore, the notice of dismissal plaintiff reportedly filed in the Kern County Superior Court

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where his action was originally filed by him, strongly suggests that he no longer wishes to pursue
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this action. At this point, the court is left with no alternative, but to dismiss the action for failure

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to prosecute and failure to obey court orders.

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Accordingly, this action is hereby dismissed due to plaintiff’s failure to prosecute this

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action and abide by court orders. The Clerk of the Court is directed to close this case.

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IT IS SO ORDERED.

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Dated:

May 16, 2017
UNITED STATES DISTRICT JUDGE

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