Glover et al v. Brown et al

Filing 6

Findings and Recommendations dismissing the action without prejudice for Plaintiff's failure to comply with the Court Order and failure to prosecute, signed by Magistrate Judge Jennifer L. Thurston on 8/23/2018. Matter referred to Judge Drozd. Objections to F&R due by 9/10/2018. (Rosales, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DWAYNE ANTHONY GLOVER, et al.,

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Plaintiffs,

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v.
JAN BROWN, et al.,
Defendants.

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Case No.: 1:18-cv-0853 -DAD-JLT
FINDINGS AND RECOMMENDATIONS
DISMISSING THE ACTION WITHOUT
PREJUDICE FOR PLAINTIFF’S FAILURE TO
COMPLY WITH THE COURT’S ORDER AND
FAILURE TO PROSECUTE

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Dwayne Anthony Glover and Glover Transport, Inc. assert the defendants are liable for

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violating the Americans with Disabilities Act and a breach of contract. (Doc. 1) Because Plaintiffs

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have failed to comply with the Court’s order to file an amended complaint and failed to prosecute the

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action, it is recommended the action be DISMISSED without prejudice.

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I.

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Relevant Background
Plaintiffs initiated this action by filing a complaint on June 21, 2018. (Doc. 1) Because

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Plaintiffs sought to proceed in forma pauperis, the Court screened the complaint. (Docs. 3, 4) The

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Court determined the facts alleged were not sufficient to support Plaintiffs’ claim for relief. In

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addition, the Court noted the corporation could not proceed without representation by an attorney.

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Because it was possible the factual deficiencies of claims brought by Mr. Glover individually

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could be cured by amendment, the Court dismissed the complaint with leave to amend on July 2, 2018.

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(Doc. 4 at 5) Mr. Glover was directed to file a First Amended Complaint as to his own personal claims
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within thirty days. (Id.) In addition, the Court ordered the corporation to “file a First Amended

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Complaint,” again noting “it may proceed only through a complaint filed by a lawyer.” (Id. at 6)

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However, Plaintiffs failed to file an amended complaint, and counsel has not appeared on behalf of the

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corporation.

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On August 8, 2018, the Court ordered Plaintiffs to show cause “why the action should not be

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dismissed for the failure comply with the Court’s order or and failure to prosecute.” (Doc. 5 at 2) In

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the alternative, Plaintiffs were directed to file an amended complaint, as previously ordered. (Id.) To

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date, Plaintiffs have not responded to the Court’s orders or taken any other action to prosecute this

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matter.

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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

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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.

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.

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Public interest and the Court’s docket

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A.

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In the case at hand, the public’s interest in expeditiously resolving this litigation and the Court’s

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interest in managing the docket weigh in favor of dismissal. See Yourish v. Cal. Amplifier, 191 F.3d

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983, 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always favors

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dismissal”); Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent interest in

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managing their dockets without being subject to noncompliant litigants). This Court cannot, and will

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not hold, this case in abeyance based upon Plaintiffs’ failure to comply with the Court’s order and

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failure to take action to continue prosecution in a timely manner. See Morris v. Morgan Stanley & Co.,

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942 F.2d 648, 652 (9th Cir. 1991) (a plaintiff has the burden “to move toward… disposition at a

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reasonable pace, and to refrain from dilatory and evasive tactics”). Accordingly, these factors weigh in

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favor of dismissal of the action.

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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). Here, Plaintiffs

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have not taken any action to further her prosecution of the action, despite being ordered by the Court to

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do so. 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 Plaintiffs in the order reviewing the allegations of the complaint that if an
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amended complaint was not filed, “the action may be dismissed for failure to prosecute and failure

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to obey the Court’s order.” (Doc. 4 at 6, emphasis in original) Again in the order to show cause,

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Plaintiffs were advised that the Court “may dismiss an action with prejudice, based on a party’s failure

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to prosecute an action or failure to obey a court order, or failure to comply with local rules.” (Doc. 5 at

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2) Importantly, the Court need only warn a party once that the matter could be dismissed for failure to

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comply to satisfy the requirements of Rule 41. Ferdik, 963 F.2d at 1262; see also Titus v. Mercedes

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Benz of North America, 695 F.2d 746, 749 n.6 (3rd Cir. 1982) (identifying a “warning” as an alternative

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sanction). Accordingly, the warnings to Plaintiffs satisfied the requirement that the Court consider

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lesser sanctions, and this factor weighs in favor of dismissal of the action. See Ferdik, 963 F.2d at

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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 Plaintiffs’ failure to prosecute the action and failure to comply with the Court’s order,

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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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Plaintiffs failed to comply with the Court’s orders dated July 2, 2018 (Doc. 4) and August 8,

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2018 (Doc. 5), and thereby failed to prosecute this action. According, the Court RECOMMENDS:

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1.

This action be DISMISSED without prejudice; and

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2.

The Clerk of Court be DIRECTED to close the action.

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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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Plaintiffs are 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:

August 23, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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