Knapp v. JP Morgan Chase Bank, N.A. et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 8/3/2011 RECOMMENDING that this action be dismissed with prejudice. Referred to Judge Kimberly J. Mueller. Objections to F&R due within 14 days. (Zignago, K.)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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FLOYD KNAPP,
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Plaintiff,
CIV. NO. S-10-2889 KJM GGH PS
vs.
JP MORGAN CHASE BANK, N.A., et al.,
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FINDINGS & RECOMMENDATIONS
Defendants.
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This action was referred to the undersigned pursuant to Local Rule 302(c)(21).
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This case was removed from state court on October 27, 2010. In the order requiring joint status
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report, filed October 27, 2010, plaintiff was advised of the requirement to obey federal and local
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rules, as well as orders of this court, and the possibility of dismissal for failure to do so.
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Defendants filed a motion to dismiss on June 17, 2011, to which plaintiff did not respond.
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Plaintiff also failed to appear at the July 21, 2011 hearing.
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Although the court liberally construes the pleadings of pro se litigants, they are
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required to adhere to the rules of court. As set forth in the district court’s order requiring status
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report, failure to obey local rules may not only result in dismissal of the action, but “no party will
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be entitled to be heard in opposition to a motion at oral arguments if opposition has not been
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timely filed by that party.” E. D. Cal. L. R. 230(c). More broadly, failure to comply with the
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Local Rules or “any order of the court may be grounds for imposition . . . of any and all sanctions
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authorized by statute or Rule or within the inherent power of the Court.” E. D. Cal. L. R. 110;
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see also E. D. Cal. L. R. 183 (requiring compliance with the Local and Federal Rules by pro se
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litigants).
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“Failure to follow a district court’s local rules is a proper ground for dismissal.”
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Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). The court should consider: (1) the public’s
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interest in expeditious resolution of litigation, (2) the court’s need to manage its docket, (3) the
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risk of prejudice to the defendants, (4) the public policy favoring disposition of cases on their
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merits, and (5) the availability of less drastic sanctions. Similar considerations authorize
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dismissal of an action for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). Link v. Wabash
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R.R., 370 U.S. 626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991).
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Moreover, failure to obey court orders is a separate and distinct ground for imposing the sanction
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of dismissal. See Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)
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(setting forth same factors for consideration as Ghazali).
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The court has considered the factors set forth in Ghazali. “[T]he key factors are
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prejudice and availability of lesser sanctions.” Wanderer v. Johnston, 910 F.2d 652, 656 (9th
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Cir.1990). Defendants are clearly prejudiced by the requirement of defending an abandoned
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case, and this court is put in the untenable position of expending limited judicial resources to
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decide such a case on the merits. The public’s interest in expeditious resolution of litigation, the
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court’s need to manage its docket, and the unsuitability of a less drastic sanction, direct that this
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case be dismissed.
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The court is troubled by plaintiff’s decision not to oppose dismissal of the
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complaint, especially because plaintiff has been fulfilling his duty under the injunctive relief
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order to timely pay into a court escrow an amount that approximates fair rent while this eviction
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case proceeds. In this case in particular, the court placed other matters to the side in order to
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issue an expeditious ruling on plaintiff’s liberally construed motion for injunctive relief because
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the complaint, or at least a discernable claim therein, contained potential merit. Nevertheless, it
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now appears that plaintiff expects the court to take over the case for him with plaintiff doing
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nothing in the prosecution of his litigation aside from waiting for the result(s). The court cannot
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fulfill its role as a neutral adjudicator of the facts and law in such a capacity.
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Accordingly, IT IS RECOMMENDED that this action be dismissed with
prejudice pursuant to Federal Rule of Civil Procedure 41(b).
These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
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fourteen (14) days after being served with these findings and recommendations, any party may
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file written objections with the court and serve a copy on all parties. Such a document should be
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captioned “Objections to Magistrate Judge”s Findings and Recommendations.” Any reply to the
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objections shall be served and filed within fourteen (14) days after service of the objections. The
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parties 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).
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DATED: August 3, 2011
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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:076/Knapp2889.41.wpd
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