Marcus X. Lopez v. City of Ceres et al
Filing
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FINDINGS and RECOMMENDATIONS Regarding Dismissal of Action for the Failure to Obey Court Orders and Failure to Prosecute, signed by Magistrate Judge Barbara A. McAuliffe on 8/23/2018. Matter referred to Judge Ishii. Objections to F&R due by 9/6/2018. (Valdez, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MARCUS XAVIER LOPEZ,
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Plaintiff,
v.
Case No. 1:18-cv-00354-AWI-BAM
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION
FOR THE FAILURE TO OBEY COURT
ORDERS AND FAILURE TO PROSECUTE
CITY OF CERES, et al.,
(Doc. Nos. 5, 6)
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Defendants.
FOURTEEN (14) DAY DEADLINE
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I.
Background
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Plaintiff Marcus Xavier Lopez, proceeding through counsel, initiated this civil rights
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action on March 12, 2018. (Doc. No. 1.) Summonses and civil new case documents were issued
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the same day, and the Court set an Initial Scheduling Conference for June 5, 2018, before the
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undersigned. (Doc. Nos. 2, 3.)
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As of May 31, 2018, no proofs of service had been filed and no defendants had appeared
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in the action. The Court therefore converted the Initial Scheduling Conference to a telephonic
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status conference. (Doc. No. 4.)
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On June 5, 2018, the Court held a telephonic status conference with Plaintiff’s counsel,
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Mina Lee Ramirez of the Law Offices of Mina L. Ramirez. Ms. Ramirez appeared by telephone
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and reported that the summons and complaint were out for service on defendants. Accordingly,
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the Court ordered Plaintiff, within thirty (30) days, to either file a status report updating the Court
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regarding the status of service or file proofs of service demonstrating that service had been
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effectuated on defendants. The Court also advised counsel that the failure to comply with the
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Court’s order may result in the imposition of sanctions. (Doc. No. 5.)
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Plaintiff’s counsel failed to file a status report or proofs of service in compliance with the
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Court’s order. Accordingly, on August 10, 2018, the Court issued an order for Plaintiff to show
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cause why the Court should not impose sanctions, which could include a recommendation for
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dismissal, based on the failure to comply with court orders and the failure to prosecute this action.
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The Court directed Plaintiff to file a response to the show cause order in writing no later than
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August 20, 2018. Plaintiff again was warned that the failure to comply with the order would
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result in the imposition of sanctions. (Doc. No. 6.)
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The deadline for Plaintiff to respond to the Court’s order to show cause has passed, and
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Plaintiff has neither complied with the order or otherwise responded to the Court. Plaintiff also
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has failed to comply with Federal Rule of Civil Procedure 4, which requires service on defendants
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within 90 days after the complaint is filed, even after the Court allowed for additional time to
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complete service. Fed. R. Civ. P. 4(m) (“If a defendant is not served within 90 days after the
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complaint is filed, the court –on motion or on its own after notice to the plaintiff—must dismiss
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the action without prejudice against that defendant or order that service be made within a
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specified time.”)
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II.
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Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with
Discussion
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any order of the Court may be grounds for imposition by the Court of any and all sanctions . . .
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within the inherent power of the Court.” District courts have the inherent power to control their
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dockets and “[i]n the exercise of that power they may impose sanctions including, where
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appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A
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court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,
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failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46
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F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,
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963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring
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amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987)
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(dismissal for failure to comply with court order).
In determining whether to dismiss an action, the Court must consider several factors:
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(1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its
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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of
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cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779
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F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).
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Here, this action has been pending since March 2018, and service on the defendants is
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overdue. The Court cannot hold this case in abeyance awaiting compliance with the Court’s
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orders by Plaintiff, and compliance with the Federal Rules of Civil Procedure regarding service.
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Thus, the Court finds that both the first and second factors weigh in favor of dismissal.
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The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a
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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.
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Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs
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against dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza,
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291 F.3d 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose
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responsibility it is to move a case toward disposition on the merits but whose conduct impedes
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progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Prods.
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Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted).
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Finally, a court’s warning to a party that failure to obey the court’s order will result in
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dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262;
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Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s order of June 5, 2018
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expressly warned Plaintiff that the failure to comply with that order might result in sanctions.
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(Doc. No. 5.) Further, the Court’s August 10, 2018 order to show cause expressly warned
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Plaintiff that failure to comply with that order would result in the imposition of sanctions, which
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may include a recommendation to dismiss this action. (Doc. No. 6 at 2.) Thus, Plaintiff had
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adequate warning that dismissal could result from noncompliance.
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Additionally, at this stage in the proceedings there is little available to the Court which
would constitute a satisfactory lesser sanction while protecting the Court from further
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unnecessary expenditure of its scarce resources. The Court believes that monetary sanctions
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against counsel, the preclusion of evidence or witnesses, or any lesser sanction would be of little
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use and likely to have no effect given that counsel has ceased litigating this case and has stopped
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responding to the Court’s orders. Although the fault here appears to lie solely with counsel,
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Plaintiff may not be excused from his lawyer’s dilatory conduct or deficient lawyering. See, e.g.,
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Varnado v. ABM Industries, Inc., No. C-07-00804 CRB, 2007 WL 2915027, at *3 (N. D. Cal.
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Oct. 5, 2007) (finding plaintiff’s complaint subject to dismissal based on conduct of her attorney
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in prior action; noting plaintiff’s remedy may lie in malpractice action against her lawyer).
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III.
Conclusion and Recommendation
Accordingly, for the reasons explained above, it is HEREBY RECOMMENDED that this
action be dismissed for the failure to obey a court order and the failure to prosecute.
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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
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fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may
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file written objections with the Court. The document should be captioned “Objections to
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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file
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objections within the specified time may result in the waiver of the “right to challenge the
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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)
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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
/s/ Barbara
August 23, 2018
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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