Jon of the Family Knutson v. California Department of Human Services et al

Filing 4

FINDINGS and RECOMMENDATIONS Dismissing the Action Without Prejudice for Plaintiff's Failure to Comply with the Court's Order and Failure to Prosecute, signed by Magistrate Judge Jennifer L. Thurston on 11/7/2017. Referred to Judge Anthony W. Ishii. Objections to F&R due within 14 days. (Hall, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JON OF THE FAMILY KNUTSON, 12 Plaintiff, 13 14 v. CALIFORNIA DEPARTMENT OF HUMAN SERVICES, et al. 15 Defendants. ) ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-01209 - AWI-JLT FINDINGS AND RECOMMENDATIONS DISMISSING THE ACTION WITHOUT PREJUDICE FOR PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S ORDER AND FAILURE TO PROSECUTE 16 Plaintiff alleges the California Department of Human Services, Kern County Division of Child 17 18 Support Customer Services, Jonathan Shugart, and Ralph McKnight are liable for due process 19 violations related to child support orders. (See Doc. 1) However, Plaintiff has failed to prosecute this 20 action by filing an amended complaint as ordered by the Court. (Doc. 2) Accordingly, it is hereby 21 recommended that the action be DISMISSED without prejudice for failure to prosecute and failure to 22 comply with the Court’s orders. 23 I. 24 Relevant Background Plaintiff initiated this action by filing a complaint on September 8, 2017. (Doc. 1) The Court 25 reviewed the complaint, and found Plaintiff failed “to allege any facts to support his claim for a 26 violation of due process.” (Doc. 2 at 6, emphasis in original) Further, the allegations were insufficient 27 to determine whether this Court has jurisdiction over Plaintiff’s claims, or whether the claims were 28 barred by the Rooker-Feldman doctrine. (Id. at 5) Therefore, the Court dismissed the complaint with 1 1 leave to amend, advising Plaintiff: “If Plaintiff fails to file an amended complaint, the action may be 2 dismissed for failure to prosecute and failure to obey the Court’s order.” (Id. at 7, emphasis omitted). 3 Plaintiff failed to file an amended complaint as ordered. Therefore, the Court issued an order 4 to show cause on October 19, 2017, directing Plaintiff “to show cause within fourteen days of the date 5 of service of this Order why the action should not be dismissed for his failure comply with the Court’s 6 order and failure to prosecute, or in the alternative, to file an amended complaint.” (Doc. 3 at 2) To 7 date, Plaintiff has failed to comply with the Court’s order and has not taken any other action to 8 prosecute the matter. 9 II. 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 10 11 party to comply with . . . any order of the Court may be grounds for the imposition by the Court of any 12 and all sanctions . . . within the inherent power of the Court.” LR 110. “District courts have inherent 13 power to control their dockets,” and in exercising that power, a court may impose sanctions including 14 dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 15 1986). A court may dismiss an action with prejudice, based on a party’s failure to prosecute an action 16 or failure to obey a court order, or failure to comply with local rules. See, e.g. Ferdik v. Bonzelet, 963 17 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order); Malone v. U.S. 18 Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); 19 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to 20 comply with local rules). 21 III. Discussion and Analysis To determine whether to dismiss an action for failure to prosecute and failure to obey a Court 22 23 order, the Court must consider several factors, including: “(1) the public’s interest in expeditious 24 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 25 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability 26 of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61; 27 Thomspon, 782 F.2d at 831. 28 /// 2 Public interest and the Court’s docket 1 A. 2 In the case at hand, the public’s interest in expeditiously resolving this litigation and the 3 Court’s interest in managing the docket weigh in favor of dismissal. See Yourish v. Cal. Amplifier, 4 191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always 5 favors dismissal”); Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent interest in 6 managing their dockets without being subject to noncompliant litigants). This Court cannot, and will 7 not hold, this case in abeyance based upon Plaintiff’s failure to comply with the Court’s orders and 8 failure to take action to continue prosecution in a timely manner. See Morris v. Morgan Stanley & 9 Co., 942 F.2d 648, 652 (9th Cir. 1991) (explaining a plaintiff has the burden “to move toward… 10 disposition at a reasonable pace, and to refrain from dilatory and evasive tactics”). Accordingly, these 11 factors weigh in favor of dismissal of the action. 12 B. Prejudice to Defendant 13 To determine whether the defendant suffers prejudice, the Court must “examine whether the 14 plaintiff’s actions impair the … ability to go to trial or threaten to interfere with the rightful decision of 15 the case.” Malone, 833 F.2d at 131 (citing Rubin v. Belo Broadcasting Corp., 769 F.2d 611, 618 (9th 16 Cir. 1985)). Significantly, a presumption of prejudiced arises when a plaintiff unreasonably delays the 17 prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). Here, Plaintiff 18 has not taken any action to further prosecute the action, despite being ordered by the Court to do so. 19 Accordingly, this factor weighs in favor of dismissal. 20 C. 21 The Court “abuses its discretion if it imposes a sanction of dismissal without first considering 22 the impact of the sanction and the adequacy of less drastic sanctions.” United States v. Nat’l Medical 23 Enterprises, Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, the Ninth Circuit has determined that a 24 court’s warning to a party that his failure to obey could result in dismissal satisfies the “consideration 25 of alternatives” requirement. See Malone, 833 F.2d at 133; Ferdik, 963 F.2d at 1262. As the Ninth 26 Circuit explained, “a plaintiff can hardly be surprised” by a sanction of dismissal “in response to 27 willful violation of a pretrial order.” Malone, 833 F.2d at 133. 28 Consideration of less drastic sanctions The Court warned Plaintiff in the order dismissing his complaint with leave to amend: “If 3 1 Plaintiff fails to file an amended complaint, the action may be dismissed for failure to prosecute 2 and failure to obey the Court’s order.” (Doc. 2 at 7, emphasis in original) Again in the order to 3 show cause, the Court warned Plaintiff that the action could be dismissed “based on a party’s failure to 4 prosecute an action or failure to obey a court order.” (Doc. 3 at 2) Significantly, the Court need only 5 warn a party once that the matter could be dismissed for failure to comply to satisfy the requirements 6 of Rule 41. Ferdik, 963 F.2d at 1262; see also Titus v. Mercedes Benz of North America, 695 F.2d 7 746, 749 n.6 (3d Cir. 1982) (identifying a “warning” as an alternative sanction). Accordingly, the 8 warnings to Plaintiff satisfied the requirement that the Court consider lesser sanctions, and this factor 9 weighs in favor of dismissal of the action. See Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424; 10 Titus, 695 F.2d at 749 n.6. 11 D. Public policy 12 Given Plaintiff’s failure to prosecute the action and failure to comply with the Court’s orders, 13 the policy favoring disposition of cases on their merits is outweighed by the factors in favor of 14 dismissal. See Malone, 833 F.2d at 133, n.2 (explaining that although “the public policy favoring 15 disposition of cases on their merits . . . weighs against dismissal, it is not sufficient to outweigh the 16 other four factors”). 17 IV. 18 Findings and Recommendations Plaintiff failed to comply with orders dated September 12, 2017 (Doc. 2) and October 19, 2017 19 (Doc. 3) despite receiving warnings that the action may be dismissed for failure to comply with the 20 Court’s orders. In doing so, Plaintiff has also failed to take any action to prosecute this action. 21 Based upon the foregoing, the Court RECOMMENDS: 22 1. This action be DISMISSED without prejudice; and 23 2. The Clerk of Court be DIRECTED to close the action. 24 These Findings and Recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local 26 Rules of Practice for the United States District Court, Eastern District of California. Within fourteen 27 days after being served with these Findings and Recommendations, any party may file written 28 objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s 4 1 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified 2 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 3 1991); Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014). 4 5 6 7 IT IS SO ORDERED. Dated: November 7, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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