(PS) Bell III v. University of California Davis Medical Center et al

Filing 55

ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 9/16/2013 ORDERING that the hearing on defendants' motion to dismiss set for 9/25/2013 is VACATED; RECOMMENDING that defendants' #50 motion to dismiss be granted; Referred to District Judge Morrison C. England, Jr.; Objections due within 14 days after being served with these F & R's.(Reader, L) Modified on 9/24/2013 (Donati, J).

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 WILLIAM BELL III, 11 Plaintiff, 12 13 14 No. 2:11-cv-1864 MCE AC PS v. ORDER AND UNIVERSITY OF CALIFORNIA DAVIS MEDICAL CENTER, ET AL., FINDINGS & RECOMMENDATIONS Defendants. 15 16 17 This action was referred to the undersigned pursuant to Local Rule 302(c)(21). On June 18 26, 2013, defendants filed a motion to dismiss the third amended complaint pursuant to Federal 19 Rule of Civil Procedure 12(b)(6). This matter is set for hearing on September 25, 2013. To date, 20 plaintiff has not filed an opposition, though he was previously warned that failure to serve an 21 opposition would be deemed a statement of non-opposition and shall result in a recommendation 22 that this action be dismissed. ECF No. 53.1 Local Rule 230(c) provides that opposition to the granting of a motion must be filed 23 24 fourteen days preceding the noticed hearing date. The Rule further provides that “[n]o party will 25 be entitled to be heard in opposition to a motion at oral arguments if written opposition to the 26 1 27 28 Although it appears from the docket that plaintiff’s copy of the court’s August 14, 2013 order was returned, plaintiff was properly served. It is the plaintiff’s responsibility to keep the court apprised of his current address at all times. Pursuant to Local Rule 182(f), service of documents at the record address of the party is fully effective. 1 1 2 motion has not been timely filed by that party.” Plaintiff has not filed opposition to defendants’ motion to dismiss. Plaintiff’s failure to 3 oppose should therefore be deemed a waiver of opposition to the granting of the motion. 4 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for 5 failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 6 1992). “In determining whether to dismiss a case for failure to comply with a court order the 7 district court must weigh five factors including: ‘(1) the public’s interest in expeditious 8 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 9 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 10 availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting Thompson v. 11 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46 F.3d 52, 53 12 (9th Cir. 1995). 13 In determining to recommend that this action be dismissed, the court has considered the 14 five factors set forth in Ferdik. Here, as in Ferdik, the first two factors strongly support dismissal 15 of this action. The action has been pending for over two years and has not yet reached the stage 16 for a scheduling order. Plaintiff’s failure to comply with the Local Rules and the court’s August 17 14, 2013 order suggests that he has abandoned this action and that further time spent by the court 18 thereon will consume scarce judicial resources in addressing litigation which plaintiff 19 demonstrates no intention to pursue. 20 The fifth factor also favors dismissal. The court has advised plaintiff of the requirements 21 under the Local Rules and granted ample additional time to oppose the pending motion, all to no 22 avail. The court finds no suitable alternative to dismissal of this action. 23 Under the circumstances of this case, the third factor, prejudice to defendants from 24 plaintiff’s failure to oppose the motion, should be given little weight. Plaintiff’s failure to oppose 25 the motion does not put defendants at any disadvantage in this action. See Ferdik, 963 F.2d at 26 1262. Indeed, defendants would only be “disadvantaged” by a decision by the court to continue 27 an action plaintiff has abandoned. The fourth factor, public policy favoring disposition of cases 28 on their merits, weighs against dismissal of this action as a sanction. However, for the reasons set 2 1 forth supra, the first, second, and fifth factors strongly support dismissal and the third factor does 2 not mitigate against it. Under the circumstances of this case, those factors outweigh the general 3 public policy favoring disposition of cases on their merits. See Ferdik, 963 F.2d at 1263. 4 5 Accordingly, IT IS HEREBY ORDERED that the hearing on defendants’ motion to dismiss, set for September 25, 2013, is vacated; and 6 IT IS HEREBY RECOMMENDED that: 7 1. Defendants’ June 26, 2013 motion to dismiss (ECF Nos. 49, 50) be granted; and 8 2. This action be dismissed. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 objections shall be filed and served within fourteen days after service of the objections. The 15 parties are advised that failure to file objections within the specified time may waive the right to 16 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 DATED: September 16, 2013 18 19 20 21 22 23 /mb;bell1864.46dm 24 25 26 27 28 3

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