Severi et al v. County of Kern et al

Filing 53

FINDINGS and RECOMMENDATIONS to Dismiss the Action as to Myranda Severi, signed by Magistrate Judge Jennifer L. Thurston on 4/12/2019. Referred to Judge Anthony W. Ishii. Objections to F&R due within 14 days. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STAN SEVERI, et al.,
Plaintiffs,

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v.

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COUNTY OF KERN, et al.,
Defendants.

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Case No.: 1:17-cv-0931-AWI- JLT
FINDINGS AND RECOMMENDATION TO
DISMISS THE ACTION AS TO MYRANDA
SEVERI

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The Court has relieved Ms. Severi’s counsel of record. (Doc. 49) The reason for the request to

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withdraw was because she had no contact with counsel since early January, despite repeated attempts

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to locate her. Id. at 2. In the order relieving counsel, the Court ordered Ms. Severi to notify the Court

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of her current mailing address and whether she intended to represent herself or hire substitute counsel.

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Id. at 4. Despite that it is now 11 days past her deadline to make these notifications, she has not done

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so. Notably, the Court advised her that if she failed to comply, this would “result in a recommendation

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that the action be dismissed as to her pursuant to Local Rule 110.” Id.

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In the meanwhile, Mr. Severi has filed a report providing the information known to him about

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Ms. Severi’s whereabout. (Doc. 52) It is notable that she appears to have dropped out of sight and, it

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appears, may no longer be in the area. Id.

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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 for a party’s failure to prosecute an action or failure to obey a

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court order. See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure

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to comply with an order to file an amended complaint); Malone v. U.S. Postal Service, 833 F.2d 128,

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130 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779

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F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules).

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III.

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

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order, the Court must consider several factors, including: “(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.” Henderson, 779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61;

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Thomspon, 782 F.2d at 831.
Public interest and the Court’s docket

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A.

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

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

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

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

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dockets without being subject to noncompliant litigants). This Court cannot hold this case as to Ms.

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Severi in abeyance based upon her failure to comply with the Court’s order and failure to prosecute this

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action. See Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991) (a plaintiff has the

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burden “to move toward… disposition at a reasonable pace, and to refrain from dilatory and evasive

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tactics”). The fact that Ms. Severi has demonstrated little interest in this case and has refused to
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cooperate n the prosecution of the action, weighs in favor of dismissal of the action as to her.

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B.

Prejudice to Defendant

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To determine whether the defendant suffers prejudice, the Court must “examine whether the

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plaintiff’s actions impair the … ability to go to trial or threaten to interfere with the rightful decision of

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the case.” Malone, 833 F.2d at 131 (citing Rubin v. Belo Broadcasting Corp., 769 F.2d 611, 618 (9th

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Cir. 1985)). Significantly, a presumption of prejudiced arises when a plaintiff unreasonably delays the

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

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has not taken any action to further her prosecution of the action, despite urging by the Court. In

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addition, the failure to produce herself for deposition, prejudices the defendants and co-plaintiff, mr.

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Severi. Therefore, this factor weighs in favor of dismissal.

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C.

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The Court “abuses its discretion if it imposes a sanction of dismissal without first considering

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the impact of the sanction and the adequacy of less drastic sanctions.” United States v. Nat’l Medical

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Enterprises, Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, a court’s warning to a party that the

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failure to obey could result in dismissal satisfies the “consideration of alternatives” requirement. See

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Malone, 833 F.2d at 133; Ferdik, 963 F.2d at 1262. As the Ninth Circuit explained, “a plaintiff can

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hardly be surprised” by a sanction of dismissal “in response to willful violation of a pretrial order.”

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Malone, 833 F.2d at 133.

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Consideration of less drastic sanctions

The Court warned the plaintiff that “her failure to comply with the Local Rules, Federal Rules,

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or any Court order, will result in a recommendation that the action be dismissed as to her pursuant to

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Local Rule 110.” (Doc. 49 at 4.) The Court need only warn a party once that the matter could be

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dismissed for failure to comply to satisfy the requirements of Rule 41. Ferdik, 963 F.2d at 1262; see

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also Titus v. Mercedes Benz of North America, 695 F.2d 746, 749 n.6 (3rd Cir. 1982) (identifying a

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“warning” as an alternative sanction). Accordingly, the warning Ms. Severi satisfied the requirement

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that the Court consider lesser sanctions, and this factor weighs in favor of dismissal of the action. See

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Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424; Titus, 695 F.2d at 749 n.6.

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D.

Public policy

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Given Ms. Severi’s failure to prosecute the action and her failure to comply with the Court’s
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order, the policy favoring disposition of cases on their merits is outweighed by the factors in favor of

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dismissal. See Malone, 833 F.2d at 133, n.2 (explaining that although “the public policy favoring

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disposition of cases on their merits . . . weighs against dismissal, it is not sufficient to outweigh the

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other four factors”).

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IV.

Findings and Recommendations

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According, the Court RECOMMENDS:

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This action as to Myranda Severi only be DISMISSED without prejudice; and

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The Clerk of Court be DIRECTED to close the action as to Myranda Severi only.

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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 fourteen

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

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

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Recommendations.”

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Plaintiff is advised that failure to file objections within the specified time may waive the right to

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

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

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IT IS SO ORDERED.
Dated:

April 12, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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