Fonseca v. Allison, et al.

Filing 6

ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE AND FAILURE TO COMPLY WITH THE LOCAL RULES signed by District Judge Kirk E. Sherriff on 3/26/2024.(Gonzales, V)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RODERICK OLAF FONSECA,

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No. 1:23-cv-00568-KES

Plaintiff-Appellant,

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v.

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KATHLEEN ALLISON, et al.,

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ORDER TO SHOW CAUSE WHY ACTION
SHOULD NOT BE DISMISSED FOR
FAILURE TO PROSECUTE AND FAILURE
TO COMPLY WITH THE LOCAL RULES

Defendants-Appellees.

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Plaintiff-Appellant, Roderick Olaf Fonseca (“Appellant”), filed this bankruptcy appeal on

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April 11, 2023, appealing a United States Bankruptcy Court’s order granting a motion to dismiss.1

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(Doc. 1.) On April 12, 2023, the district court mailed a letter to Appellant with further

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instructions for prosecuting the appeal, noting Appellant’s duty to comply with the underlying

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procedural rules for designation of the record. (Doc. 2.) On June 30, 2023, the bankruptcy court

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notified Appellant that the filing fee had not yet been paid. (Doc. 3.) This action was reassigned

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on December 1, 2023, and March 14, 2024. (Docs. 4, 5.) The clerk’s office served the orders of

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reassignment by mail upon Appellant, but they were returned as undeliverable on December 11,

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2023 and March 21, 2024. (See docket.)

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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.

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A district court possesses the inherent power to control its docket, United States v. W.R.

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Grace, 526 F.3d 499, 509 (9th Cir. 2008) (en banc), and may dismiss an action sua sponte for

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failure to prosecute, McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). A party’s failure to

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comply with applicable rules and law may also be grounds for dismissal or any other sanction

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appropriate under the Local Rules. See Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995)

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(“Failure to follow a district court’s local rules is a proper ground for dismissal.”). Local

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Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules or with any

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order of the Court may be grounds for imposition by the Court of any and all sanctions authorized

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by statute or Rule or within the inherent power of the Court.” The Court, however, recognizes

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that “dismissal is a harsh penalty, and, therefore, it should be imposed only in extreme

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circumstances.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992).

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Although this action has been pending since April 11, 2023, Appellant has failed to pay

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the required filing fee or to prosecute this appeal. (See docket.) On June 30, 2023, the clerk of

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the bankruptcy court provided notice that the record was incomplete or delayed because

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Appellant had failed to pay the required filing fee. (Doc. 3.)

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Additionally, Appellant has not notified the court of any change in his address, and since

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December 11, 2023, the clerk’s office mailings to Appellant have been returned as undeliverable.

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Under Local Rule 183(b), a party appearing without an attorney “shall keep the Court and

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opposing parties advised as to his or her current address. If mail directed to a [pro se]

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plaintiff . . . by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify

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the Court and opposing parties within sixty-three (63) days thereafter of a current address, the

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Court may dismiss the action without prejudice for failure to prosecute.” L.R. 183(b). Absent

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notice of a change in a party’s address, service at the party’s prior address is fully effective. L.R.

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182(f). More than sixty-three (63) days have passed since Appellant’s mail was first returned by

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the U.S. Postal Service, and Appellant has not notified the court of a change in his address.

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Accordingly, within fourteen (14) days of the date of service of this order, Appellant

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shall show cause in writing why the action should not be dismissed for failure to prosecute and

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failure to comply with the Local Rules. Alternatively, within fourteen (14) days, Appellant may
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voluntarily dismiss the action. Appellant is warned that failure to comply with this order

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may result in dismissal of the action without prejudice for failure to prosecute and failure to

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obey a court order.

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IT IS SO ORDERED.
Dated:

March 26, 2024
UNITED STATES DISTRICT JUDGE

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