Attebery v. Uhls et al

Filing 24

ORDER signed by Judge Morrison C. England, Jr on 7/31/12 ORDERING that for the reasons just stated, Defendants' Motion to Dismiss for Failure to Prosecute and for Sanctions 22 is GRANTED. The Clerk of the Court is directed to close this case. CASE CLOSED(Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT ATTEBERY,

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No. 2:10-cv-01341-MCE-DAD

Plaintiff,
v.

MEMORANDUM AND ORDER

LOUIS UHL, et al.,

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Defendants.

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Plaintiff Robert Attebery (“Plaintiff”) initiated this action against Defendants Louis Uhl

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and Jim Uhl, both doing business as Sherwood Harbor & R.V. Park, and Fenocchio Revocable

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Trust (collectively, “Defendants”). Presently before the Court is Defendants’ Motion to Dismiss

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Plaintiff’s Complaint for Failure to Prosecute and for Sanctions (ECF No. 22). For the following

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reasons, Defendants’ Motion is GRANTED.1

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ANALYSIS

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Defendants in this case move to dismiss Plaintiff’s operative First Amended Complaint
(“FAC”) for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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Because oral argument will not be of material assistance, the Court ordered this matter
submitted on the briefing. E.D. Cal. Local Rule 230(g).
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This Court has the inherent power to dismiss a case, with prejudice, for lack of prosecution.
Link v. Wabash Railroad Co., 370 U.S. 626, 629-30 (1962). Such a dismissal is authorized by
Rule 41(b), which provides for termination of a lawsuit “for failure of the plaintiff to prosecute,”
Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991), and by Eastern District of
California Local Rule 110, which provides that the “[f]ailure of counsel or of a party to comply
with [the Local Rules] or with any order of the Court may be grounds for imposition by the Court
of any and all sanctions authorized by statute or Rule or within the inherent power of the Court.”
Dismissal is largely a matter within the Court’s discretion. Taub v. Hale, 355 F.2d 202 (2d Cir.
1966). Prior to dismissing an action, however, this Court must consider: “(1) the public’s interest
in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of
prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and
(5) the availability of less drastic alternatives.” Yourish v. California Amplifier, 191 F.3d 983,
990 (9th Cir. 1999) (quoting Hernandez v. City El Monte, 138 F.3d 393, 399 (9th Cir. 1998)).

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Having considered each of the above factors, the Court now finds dismissal warranted
here based on Plaintiff’s failure to: 1) respond to Defendants’ discovery requests, Declaration of
Anthony C. Diepenbrock (“Diepenbrock Depo.”), ¶¶ 5-6; 2) appear for his own deposition, id.,
¶¶ 7-8; 3) attend a settlement conference before the magistrate judge, id., ¶¶ 9-10; 4) respond to
an Order to Show Cause (“OSC”) issued by that magistrate judge, ECF Nos. 18, 20; 5) pay
sanctions as consequently ordered by that same judge, Diepenbrock Depo., ¶¶ 12-13; and
6) oppose Defendants’ instant Motion. This case has already been on file for over two years and
neither the Court nor the public have any hope of moving the action expeditiously toward any
kind of resolution absent Plaintiff’s participation. In addition, Defendants will suffer prejudice if
forced to defend against Plaintiff’s allegations despite Plaintiff’s failure to provide any responses
to the discovery propounded on him. Finally, less drastic measures, such as the monetary
sanctions already ordered by the magistrate judge, have already proven insufficient to motivate
Plaintiff to change his approach to this litigation. Defendants’ Motion is thus GRANTED.
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Given Plaintiff’s wholesale disregard of his responsibilities in this case, the Court also
finds the imposition of sanctions proper here as well. According to Defendants, counsel spent
four hours preparing and drafting the instant Motion, at a billing rate of $175 per hour.
Diepenbrock Depo., ¶ 14. The Court finds both the amount of time charged as well as counsel’s
rate to be reasonable. Accordingly, Plaintiff is hereby ordered to pay sanctions to Defendants in
the amount of $700.

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CONCLUSION
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For the reasons just stated, Defendants’ Motion to Dismiss for Failure to Prosecute and for
Sanctions (ECF No. 22) is GRANTED. The Clerk of the Court is directed to close this case.

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IT IS SO ORDERED.

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Dated: July 31, 2012
__________________________________
MORRISON C. ENGLAND, JR
UNITED STATES DISTRICT JUDGE

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DEAC_Signature-END:

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c4d6b0d3

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