Fonseca v. Allison, et al.

Filing 6


Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RODERICK OLAF FONSECA, 12 No. 1:23-cv-00568-KES Plaintiff-Appellant, 13 v. 14 KATHLEEN ALLISON, et al., 15 ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE AND FAILURE TO COMPLY WITH THE LOCAL RULES Defendants-Appellees. 16 17 Plaintiff-Appellant, Roderick Olaf Fonseca (“Appellant”), filed this bankruptcy appeal on 18 19 April 11, 2023, appealing a United States Bankruptcy Court’s order granting a motion to dismiss.1 20 (Doc. 1.) On April 12, 2023, the district court mailed a letter to Appellant with further 21 instructions for prosecuting the appeal, noting Appellant’s duty to comply with the underlying 22 procedural rules for designation of the record. (Doc. 2.) On June 30, 2023, the bankruptcy court 23 notified Appellant that the filing fee had not yet been paid. (Doc. 3.) This action was reassigned 24 on December 1, 2023, and March 14, 2024. (Docs. 4, 5.) The clerk’s office served the orders of 25 reassignment by mail upon Appellant, but they were returned as undeliverable on December 11, 26 2023 and March 21, 2024. (See docket.) 27 1 28 Under 28 U.S.C. § 158(c)(1), a party may elect to have an appeal heard by the United States District Court rather than the Bankruptcy Appellate Panel. 1 1 A district court possesses the inherent power to control its docket, United States v. W.R. 2 Grace, 526 F.3d 499, 509 (9th Cir. 2008) (en banc), and may dismiss an action sua sponte for 3 failure to prosecute, McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). A party’s failure to 4 comply with applicable rules and law may also be grounds for dismissal or any other sanction 5 appropriate under the Local Rules. See Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) 6 (“Failure to follow a district court’s local rules is a proper ground for dismissal.”). Local 7 Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules or with any 8 order of the Court may be grounds for imposition by the Court of any and all sanctions authorized 9 by statute or Rule or within the inherent power of the Court.” The Court, however, recognizes 10 that “dismissal is a harsh penalty, and, therefore, it should be imposed only in extreme 11 circumstances.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). 12 Although this action has been pending since April 11, 2023, Appellant has failed to pay 13 the required filing fee or to prosecute this appeal. (See docket.) On June 30, 2023, the clerk of 14 the bankruptcy court provided notice that the record was incomplete or delayed because 15 Appellant had failed to pay the required filing fee. (Doc. 3.) 16 Additionally, Appellant has not notified the court of any change in his address, and since 17 December 11, 2023, the clerk’s office mailings to Appellant have been returned as undeliverable. 18 Under Local Rule 183(b), a party appearing without an attorney “shall keep the Court and 19 opposing parties advised as to his or her current address. If mail directed to a [pro se] 20 plaintiff . . . by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify 21 the Court and opposing parties within sixty-three (63) days thereafter of a current address, the 22 Court may dismiss the action without prejudice for failure to prosecute.” L.R. 183(b). Absent 23 notice of a change in a party’s address, service at the party’s prior address is fully effective. L.R. 24 182(f). More than sixty-three (63) days have passed since Appellant’s mail was first returned by 25 the U.S. Postal Service, and Appellant has not notified the court of a change in his address. 26 Accordingly, within fourteen (14) days of the date of service of this order, Appellant 27 shall show cause in writing why the action should not be dismissed for failure to prosecute and 28 failure to comply with the Local Rules. Alternatively, within fourteen (14) days, Appellant may 2 1 voluntarily dismiss the action. Appellant is warned that failure to comply with this order 2 may result in dismissal of the action without prejudice for failure to prosecute and failure to 3 obey a court order. 4 5 6 7 IT IS SO ORDERED. Dated: March 26, 2024 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?