Purnell v. Trans Union LLC et al

Filing 23

FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED for Plaintiff's failure to prosecute the action, to appear, and comply with the Court's orders of March 17, 2017, and June 13, 2017. IT IS FURTHER ORDERED that the Or der to Show Cause with respect to Defendant Equifax, Inc., only is discharged. These findings are referred to District Judge Dale A. Drozd, with objections due within 14 days of service of this order. Order signed by Magistrate Judge Erica P. Grosjean on 6/22/2017. (Rooney, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGETTE PURNELL, 12 Plaintiff, 13 14 v. Case No. 1:17-cv-00393-DAD-EPG FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF PLAINTIFF’S CASE FOR FAILURE TO PROSECUTE EQUIFAX INC., et al., 15 Defendants. 16 On March 17, 2017, Defendant Trans Union LLC removed this case from Fresno County 17 Superior Court. (ECF No. 3.) The Court set an initial scheduling conference in the case for June 18 13, 2017. (ECF No. 6.) The parties were instructed that attendance at the scheduling conference 19 was mandatory. Plaintiff reviewed and approved the parties’ joint scheduling report, which 20 denotes the time and date of the scheduling conference on its front page, before it was filed. (ECF 21 No. 19.) 22 Plaintiff and Defendant Equifax, Inc. did not appear at the scheduling conference. The 23 Court issued an Order to Show Cause why sanctions should not issue. (ECF No. 20.) The parties 24 were warned that a failure to respond to the Order to Show Cause could lead to the sanctions, 25 including monetary sanctions or dismissal of the case. The parties were also instructed to appear 26 at an order to show cause hearing on June 22, 2017. 27 Defendant Equifax, Inc. responded to the Order to Show Cause and provided a 28 1 1 satisfactory explanation for its absence. (ECF No. 21.) Defendant Equifax, Inc. also appeared at 2 the order to show cause hearing. 3 4 5 Plaintiff, however, did not respond to the Order to Show Cause, nor did she appear at the hearing. Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 6 or with any order of the Court may be grounds for the imposition by the Court of any and all 7 sanctions . . . within the inherent power of the Court.” District courts have the inherent power to 8 control their dockets and “in the exercise of that power, they may impose sanctions including, 9 where appropriate . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). 10 A court may dismiss an action based on a party’s failure to prosecute an action, failure to obey a 11 court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 12 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 13 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of 14 complaint); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of 15 prosecution and failure to comply with local rules). 16 To determine whether to dismiss an action for lack of prosecution, failure to obey a court 17 order, or failure to comply with local rules, the court must consider several factors: (1) the 18 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 19 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 20 their merits; and (5) the availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 21 963 F.2d at 1260-61; Henderson, 779 F.2d at 1423-24. 22 In the instant case, the Court finds that the public’s interest in expeditiously resolving this 23 litigation and the Court’s interest in managing the docket weigh in favor of dismissal because the 24 case has been pending since January 31, 2017, the date it was filed in Fresno County Superior 25 Court. Following the settlement and dismissal of a single defendant, however, Plaintiff has shown 26 no interest in participating in the litigation any further. The third factor, risk of prejudice to 27 defendants, also weighs in favor of dismissal because a presumption of injury arises from any 28 unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 2 1 1976). The fourth factor, public policy favoring disposition of cases on their merits, is outweighed 2 by the factors in favor of dismissal. Finally, a court’s warning to a party that her failure to obey 3 the court’s order will result in dismissal satisfies the “consideration of alternatives” requirement. 4 Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424. The Court’s Order to Show Cause stated 5 that the case could be dismissed if Plaintiff failed to respond to the Order to Show Cause. (ECF 6 No. 20.) Moreover, there are few sanctions that could compel Plaintiffs to prosecute an action that 7 they are simply uninterested in pursuing, particular at this early stage of litigation. 8 9 10 11 12 13 Accordingly, IT IS HEREBY RECOMMENDED that this action be DISMISSED for Plaintiffs’ failure to prosecute the action, to appear, and comply with the Court’s orders of March 17, 2017 and June 13, 2017. IT IS FURTHER ORDERED that the Order to Show Cause with respect to Defendant Equifax, Inc. only is discharged. These findings and recommendations will be submitted to the United States District Judge 14 assigned to this case pursuant to the provisions of Title 28 of the United States Code section 15 636(b)(1). Within fourteen (14) days after being served with these findings and 16 recommendations, the parties may file written objections with the Court. The document should be 17 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are 18 advised that failure to file objections within the specified time may waive the right to appeal the 19 District Court’s order. Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir. 2015). 20 21 22 IT IS SO ORDERED. Dated: June 22, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 3

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