Fernandez v. Los Rios Community College District
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 9/26/11 recommending that defendant Los Rios Community College District be dismissed re 1 Complaint filed by Jesse L. Fernandez. Objections to F&R due w/in 14 days. (Matson, R)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JESSE L. FERNANDEZ,
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Plaintiff,
CIV. NO. S- 10-3442 GEB GGH PS
vs.
LOS RIOS COMMUNITY COLLEGE
DISTRICT,
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Defendant.
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FINDINGS & RECOMMENDATIONS
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This action was referred to the undersigned pursuant to Local Rule 302(c)(21).
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This action was filed on December 23, 2010. In the order requiring joint status report, filed
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December 27, 2010, plaintiff was advised of the requirement to obey federal and local rules, as
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well as orders of this court, and the possibility of dismissal for failure to do so. Defendant filed a
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motion to dismiss and motion to strike on May 9, 2011, to which plaintiff did not respond. By
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order filed July 8, 2011, the hearing on the motion was vacated due to plaintiff’s failure to file an
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opposition and the motions were taken under submission. On July 13, 2011, plaintiff filed a
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request for extension of time in which to file an opposition which was granted by order of July
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18, 2011. Plaintiff was ordered to file and serve his oppositions within twenty-one days of that
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order. Plaintiff did not respond to the order giving him a second opportunity to oppose the
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motions, and did not file oppositions to the motions.
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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). Defendant is clearly prejudiced by the requirement of defending an abandoned case,
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and this court is put in the untenable position of expending limited judicial resources to decide
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such a case on the merits. The public’s interest in expeditious resolution of litigation, the court’s
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need to manage its docket, and the unsuitability of a less drastic sanction, direct that defendant be
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dismissed.
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Furthermore, the court has considered the motions and finds that they have merit.
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Accordingly, IT IS RECOMMENDED that defendant Los Rios Community
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College District be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b).
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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: September 26, 2011
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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:076/Fernandez3442.41.wpd
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