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)

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