Tanzy v. Yaylaci et al

Filing 7

FINDINGS and RECOMMENDATIONS Dismissing the Action Without Prejudice for Plaintiff's Failure to Comply with the Court's Orders and Failure to Prosecute, signed by Magistrate Judge Jennifer L. Thurston on 11/19/2021. Referred to District Judge. 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

INGRAM TANZY,

12

Plaintiff,

13
14
15

v.
BAHRI YAYLACI and LONG ISLAND
FREIGHT CORP.,
Defendants

16
17

)
)
)
)
)
)
)
)
)
)
)

Case No.: 1:21-cv-1187 -NONE JLT
FINDINGS AND RECOMMENDATIONS
DISMISSING THE ACTION WITHOUT
PREJUDICE FOR PLAINTIFF’S FAILURE TO
COMPLY WITH THE COURT’S ORDERS AND
FAILURE TO PROSECUTE

Ingram Tanzy was injured in a motor vehicle accident with a commercial truck and seeks to

18

hold the defendants—including the truck driver and the owner of the truck— liable for negligence. (See

19

generally Doc. 1) Because Plaintiff failed to prosecute this action and failed to comply with the

20

Court’s orders, it is recommended the action be DISMISSED without prejudice.

21

I.

22

Relevant Background
Plaintiff initiated this action by filing a complaint on August 5, 2021. (Doc. 1) The following

23

day, the Court issued a summons to Defendant and its New Case Documents. (Docs. 3, 4) In the

24

order setting the mandatory scheduling conference for November 5, 2021, Plaintiff was informed:

25
26
27
28

The Court is unable to conduct a scheduling conference until defendants have been
served with the summons and complaint. Accordingly, plaintiff(s) shall diligently
pursue service of summons and complaint and dismiss those defendants against
whom plaintiff(s) will not pursue claims. Plaintiff(s) shall promptly file proofs of
service of the summons and complaint so the Court has a record of service. Counsel
are referred to F.R.Civ.P., Rule 4 regarding the requirement of timely service of the
complaint Failure to timely serve the summons and complaint may result in the
imposition of sanctions, including the dismissal of unserved defendants.
1

1

(Doc. 4 at 1.) Nevertheless, Plaintiff failed to file a proof of service.
On October 21, 2021, the Court issued an order to Plaintiff to show cause why sanctions should

2
3

not be imposed for the failure to prosecute this action and failure to comply with the Court’s orders.

4

(Doc. 5 at 1.) Plaintiff was informed that, as an alternative response to the order, a proof of service may

5

be filed. (Id.) Any response to the order was due “[n]o later than November 5, 2021. (Id. at 1,

6

emphasis omitted.) Finally, Plaintiff was advised the “[f]ailure to respond may result in the Court

7

recommending dismissal of the action.” (Id. at 2.) To date, Plaintiff has not responded to the Court’s

8

order or taken any other action to prosecute her claims.

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

16

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

17

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

18

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

19

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

20

III.

21

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

22

order, the Court must consider several factors, including: “(1) the public’s interest in expeditious

23

resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the

24

defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability

25

of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61;

26

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

27

A.

28

In the case at hand, the public’s interest in expeditiously resolving this litigation and the Court’s
2

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

favor of dismissal of the action.

10

B.

Prejudice to Defendants

11

To determine whether the defendants suffer prejudice, the Court must “examine whether the

12

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

13

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

14

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

15

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

16

has not taken any action to further prosecution of the action, despite being ordered by the Court to do

17

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

18

C.

19

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

20

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

21

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

22

failure to obey with its orders could result in dismissal satisfies the “consideration of alternatives”

23

requirement. See Malone, 833 F.2d at 133; Ferdik, 963 F.2d at 1262. As the Ninth Circuit explained,

24

“a plaintiff can hardly be surprised” by a sanction of dismissal “in response to willful violation of a

25

pretrial order.” Malone, 833 F.2d at 133.

26

Consideration of less drastic sanctions

The Court warned Plaintiff in the order setting the scheduling conference that “[f]ailure to

27

timely serve the summons and complaint may result in the imposition of sanctions, including the

28

dismissal of unserved defendants.” (Doc. 4 at 1.) As a result, Plaintiff was ordered to show cause why
3

1

sanctions should not be imposed, and again informed the failure to respond may result in dismissal

2

(Doc. 5 at 1-2.) Importantly, the Court need only warn a party once that the matter could be dismissed

3

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

4

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

5

alternative sanction). Accordingly, the warnings to Plaintiff satisfied the requirement that the Court

6

consider lesser sanctions, and this factor weighs in favor of dismissal of the action. See Ferdik, 963

7

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

8

D.

Public policy

9

Given Plaintiff’s failure to prosecute the action and failure to comply with the Court’s orders,

10

the policy favoring disposition of cases on their merits is outweighed by the factors favoring dismissal.

11

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

12

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

13

factors”).

14

IV.

Plaintiff failed to comply with the Court’s orders dated August 6, 2021 (Doc. 4) and October

15
16

Findings and Recommendations

22, 2021 (Doc. 5), and thereby failed to prosecute this action.

17

According, the Court RECOMMENDS:

18

1.

This action be DISMISSED without prejudice; and

19

2.

The Clerk of Court be DIRECTED to close the action.

20

These Findings and Recommendations are submitted to the United States District Judge

21

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local

22

Rules of Practice for the United States District Court, Eastern District of California. Within fourteen

23

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

24

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

25

Recommendations.”

26

///

27

///

28

///
4

1

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

2

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

3

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

4
5
6
7

IT IS SO ORDERED.
Dated:

November 19, 2021

_ /s/ Jennifer L. Thurston
CHIEF 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