Celentano v. Sacramento Regional Transit District et al

Filing 39

FINDINGS and RECOMMENDATIONS recommending that plaintiff's action be DISMISSED WITH PREJUDICE signed by Magistrate Judge Carolyn K. Delaney on 9/24/12. F&R referred to Judge Kimberly J. Mueller. Objections to F&R due within fourteen (14) days. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGIA CELENTANO,

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Plaintiff,

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No. 2:11-cv-01881 KJM CKD PS

v.
SACRAMENTO REGIONAL
TRANSIT DISTRICT et al.,

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Defendants.
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FINDINGS AND RECOMMENDATIONS
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Through these findings and recommendations, the undersigned recommends that

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plaintiff’s case be dismissed with prejudice and that this case be closed.1 Plaintiff has twice

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failed to appear for scheduled status conferences and has refused to cooperate in scheduling a

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Voluntary Dispute Resolution Program (“VDRP”) session despite having consented to referral.

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I.

BACKGROUND

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Plaintiff proceeds without counsel and in forma pauperis in this matter. Dkt. 8.

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The original complaint was filed on July 18, 2011 and the operative second amended complaint

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asserts claims under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act

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This case proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28
U.S.C. § 636(b)(1).
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against several governmental entity defendants. Dkt. 1, 26.
On October 24, 2011 the undersigned entered an order setting a status conference

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for March 21, 2012 and requiring each party to file status reports no later than 14 days prior to

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the hearing. Dkt. 9. Defendants timely filed their status report on March 7, 2012 (Dkt. 21), but

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when plaintiff failed to do so the undersigned granted a five day extension in which plaintiff

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could file her report or a statement consenting to referral to the court’s Voluntary Dispute

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Resolution Program (“VDRP”) (Dkt. 22). Plaintiff filed a statement consenting to referral to

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VDRP on March 15, 2012 and, because both parties had requested referral, the undersigned

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entered an order on March 19, 2012 referring the matter accordingly. Dkt. 15, 23, 24.

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On July 27, 2012, defendants notified the court that several attempts to schedule

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the VDRP session with plaintiff had been unsuccessful. Dkt. 30. According to defendants, both

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the VDRP coordinator and counsel for defendants had attempted scheduling a date, but plaintiff

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had not returned defendants’ most recent phone call. Id. In response, the undersigned issued an

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order to show cause (“OSC”) on July 31, 2012, which required plaintiff to: (1) file a declaration

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within fourteen days of the order showing cause why monetary sanctions should not be imposed

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against her for failing to cooperate in good faith with the scheduling of the VDRP session; (2)

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personally appear at a status conference set for August 29, 2012; and (3) file a joint status report

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with the defendants no later than August 22, 2012 . Dkt. 31. The undersigned also cautioned

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plaintiff that “failure to cooperate with the drafting of the joint status report and/or failure to

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appear at the status conference will result in a recommendation that the action be dismissed with

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prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute the case and failure to obey

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court orders and the Local Rules.” Id. Plaintiff was further warned that failing to comply with

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the Local Rules “may be grounds for imposition ....of any and all sanctions authorized by statute

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or Rule or within the inherent power of the Court.” Id.

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On August 13, 2012 plaintiff filed a declaration objecting generally to the court’s
OSC and to defendants’ characterization of its attempts to schedule the VDRP session with
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plaintiff. Dkt. 33. She also referenced a deposition scheduled by defendants on July 30, 2012

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that she refused to attend due to “discovery issues that need to be settled by the judge first.” Id.

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In their status report filed on August 21, 2012, defendants indicated that they circulated a draft

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joint report to plaintiff on August 8, 2012 for her to review and edit, but she failed to respond.

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Dkt. 34.

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On August 28, 2012 – the day before the status conference – plaintiff left a

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message with the court stating, without explanation, that she would not be able to attend. Dkt.

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36. The court subsequently vacated the August 29, 2012 status conference and re-set it for

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September 19, 2012. Dkt. 36. Plaintiff was again instructed to personally appear at the status

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conference and informed that the court was not inclined to further extend the date absent

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extraordinary circumstances. Id. Additionally, plaintiff was cautioned that failure to appear at

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the status conference would result in a recommendation that the action be dismissed with

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prejudice pursuant to Fed. R. Civ. P. 41(b). Id. Nonetheless, plaintiff again failed to appear for

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the September 19, 2012 status conference as instructed. Dkt. 38. She did not notify the court of

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her absence prior to the hearing nor did she subsequently explain her failure to attend.

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II.

DISCUSSION

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Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an

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action for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure,

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failure to comply with the court’s local rules, or failure to comply with the court’s orders.2 See,

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e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act sua

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sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S.

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Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action

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pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute

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Rule 41(b) provides, in part: “(b) Involuntary Dismissal; Effect. If the plaintiff fails to
prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action
or any claim against it.” Fed. R. Civ. P. 41(b).
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or comply with the rules of civil procedure or the court’s orders); Ferdik v. Bonzelet, 963 F.2d

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1258, 1260 (9th Cir. 1992) (“Pursuant to Federal Rule of Civil Procedure 41(b), the district court

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may dismiss an action for failure to comply with any order of the court”); Pagtalunan v. Galaza,

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291 F.3d 639, 642-43 (9th Cir. 2002) (affirming district court’s dismissal of case for failure to

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prosecute when habeas petitioner failed to file a first amended petition). This court’s Local

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Rules are in accord. See E.D. Cal. L.R. 110 (“Failure of counsel or of a party to comply with

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these Rules or with any order of the Court may be grounds for imposition by the Court of any and

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all sanctions authorized by statute or Rule or within the inherent power of the Court.”); E.D. Cal.

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L.R. 183(a) (providing that a pro se party’s failure to comply with the Federal Rules of Civil

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Procedure, the court’s Local Rules, and other applicable law may support, among other things,

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dismissal of that party’s action).

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The court must weigh five factors in determining whether to dismiss a case for

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failure to prosecute, failure to comply with a court order, or failure to comply with a district

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court’s local rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider:

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(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.

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Id. at 1260-61; accord Pagtalunan, 291 F.3d at 642-43; Ghazali v. Moran, 46 F.3d 52, 53 (9th

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Cir. 1995). The Ninth Circuit holds that “[t]hese factors are not a series of conditions precedent

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before the judge can do anything, but a way for a district judge to think about what to do.” In re

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Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006).

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Although involuntary dismissal can be a harsh remedy, a balancing of the five

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relevant factors weigh in favor of dismissing this action. The first factor supports dismissal of

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this action. This case has been ongoing for over one year with the plaintiff doing little more than

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filing three complaints. She has repeatedly failed to appear at scheduled status conferences to

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discuss the state of her action against defendants and allow the court to move forward in setting
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discovery and other deadlines. Because plaintiff has also failed to cooperate with VDRP, the

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parties have yet to address a single matter at issue in the case. Such delay in reaching the merits

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of a case is costly in money, memory, manageability, and confidence in the process and is within

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the court’s judgment to determine when delay becomes unreasonable. See In re

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Phenylpropanolamine, 460 F.3d at 1227.

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The second factor, which considers the court’s need to manage its docket, relates

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to the first factor and also supports dismissal of this action. See Id, In re Eisen, 31 F.3d 1447,

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1452 (9th Cir. 1994) (second factor usually reviewed in conjunction with the public’s interest in

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expeditious resolution). The goal in allowing the district courts to retain power over their own

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dockets is to get cases decided on the merits of issues that are truly meritorious and in dispute. In

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re Phenylpropanolamine, 460 F.3d at 1227. A scheduling order is one way to facilitate that

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process and Fed. Rule Civ. Pro 16(c)(12)(f) puts teeth into these objectives by permitting a judge

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to dismiss a case for failing to comply with such orders. See id at 1227. Plaintiff’s failure to

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appear for both status conferences – wherein a scheduling order would issue, setting dates for

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discovery and summary adjudication – has prevented this court from identifying and addressing

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the matters at issue despite that this action has been on its docket since July 19, 2011. Dkt. 1.

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Any further time spent by the court on this case will consume scarce judicial resources and take

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away from other active cases. See Ferdik, 963 F.2d at 1261 (recognizing that district courts have

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inherent power to manage their dockets without being subject to noncompliant litigants).

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The third factor, which considers prejudice to the defendant, also counsels in

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favor of dismissal here. Prejudice is found if the plaintiff’s actions impair the defendant’s ability

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to go to trial or threaten to interfere with the rightful decision of the case. In re

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Phenylpropanolamine, 460 F.3d at 1227 (quoting Adriana Int’l Corp. V. Thoeren, 913 F.2d 1406,

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1412 (9th Cir. 1990)). The costs and burden of litigation to the defendants are also considered

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prejudicial. See Pagtalunan, 291 F.3d at 642. This is especially important here where all of

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defendants are governmental entities operating with scarce resources and managing heavy
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caseloads. Additionally, the unreasonable delay, noted above, in reaching the merits of this case

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is presumed to be prejudicial to defendants. See, e.g., In re Phenylpropanolamine., 460 F.3d at

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1227 (quoting In re Eisen, 31 F.3d at 1453) .

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While the fourth factor favors disposition of cases on their merits, and not by

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dismissal, plaintiff’s repeated noncompliant behavior allows the undersigned to fairly

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recommend dismissal of her claims. The public policy discouraging dismissal without

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adjudication on the merits lends little support to a party, such as plaintiff, whose responsibility it

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is to move a case toward disposition on the merits but whose conduct impedes progress in that

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direction. See, e.g., In re Phenylpropanolamine, 460 F.3d at 1228, Allen v. Exxon Corp. (In re

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the Exxon Valdez), 102 F.3d 429, 433 (9th Cir. 1996) (plaintiffs’ total refusal to provide

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discovery obstructed resolution of their claims on the merits). Plaintiff here has failed to appear

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at two status conferences, designed to identify the issues in dispute and set a schedule for moving

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the matter towards disposition. She has also failed to cooperate in scheduling a VDRP session

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despite having agreed to do so. Her involvement in both the status conference and VDRP is

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essential to move the case towards resolution and her refusal to do so thwarts the court’s (and the

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defendants’) ability to reach the merits. Thus, this factor presents no bar to dismissal of this

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action.

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The fifth factor, which considers the availability of less drastic measures, also

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supports dismissal of this action. The court has already pursued remedies that are less drastic

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than recommending dismissal of plaintiff’s suit. See Malone v. U.S. Postal Serv., 833 F.2d 128,

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131-132 (9th Cir. 1987) (court abuses its discretion if it imposes a sanction of dismissal without

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first considering the impact of the sanction and the adequacy of less drastic sanctions). The

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court has twice given plaintiff another chance to comply with its orders following her failure to

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do so and has twice warned the plaintiff of the possibility of dismissal for failure to comply. See

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Id at 131-32 (alternative remedies include giving the noncompliant party another chance to

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comply and warning the plaintiff of the possibility of dismissal before actually ordering it).
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When plaintiff failed to timely file her status report in advance of the March 21,

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2012 scheduling conference, the undersigned granted her an extension of five days within which

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to comply. Dkt 22. When plaintiff failed to appear at the August 29, 2012 status conference, it

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was re-set for her benefit and she was advised that failure to appear would result in a

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recommendation that the action be dismissed with prejudice. Dkt. 36. In no uncertain terms, the

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undersigned made clear that absent extraordinary circumstances, the court was not inclined to

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further extend the date of the status conference. Id. This was not the first time plaintiff was so

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cautioned. In the OSC setting the August 29, 2012 status conference, plaintiff was cautioned that

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failure to cooperate with the drafting of the joint status report and/or failure to appear at the

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hearing would result in a recommendation that the action be dismissed with prejudice. Dkt. 31.

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It is hard to see what, if any, additional measures might compel plaintiff to comply with the

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orders of this court. This is especially true given that plaintiff is proceeding in forma pauperis

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and thus would very likely be unable to pay any monetary sanction imposed in lieu of dismissal.

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III.

CONCLUSION

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that:

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Plaintiff’s action be DISMISSED WITH PREJUDICE pursuant to Federal

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Rule of Civil Procedure 41(b) for failure to prosecute the action and failure to follow the court’s

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orders.

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The Clerk of Court be directed to close this case and vacate all dates.

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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 28 U.S.C. § 636(b)(l). Within fourteen

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(14) days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served on all parties and filed with the court within fourteen (14) days after service of the

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objections. The parties are advised that failure to file objections within the specified time may
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waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th

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Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

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Dated: September 24, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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