J & J Sports Productions, Inc. v. Salim et al

Filing 40

ORDER signed by Judge Garland E. Burrell, Jr., on 12/4/13, ORDERING that Defendant's Answer is stricken and default be entered by the Clerk. Further, the 1/13/2014 final pretrial conference and the 2/25/2014 trial are VACATED. Further, a Status Conference is SET for 4/28/2014 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell, Jr.. A status report shall be filed 14 days prior to the status conference. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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J & J SPORTS PRODUCTIONS,
INC.,
Plaintiff,

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ORDER STRIKING ANSWER AND
ENTERING DEFAULT

v.

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No. 2:11-cv-02440-GEB-AC

HUMBERTO LEON SANCHEZ, JR.,
individually and d/b/a
DISCOTECA SANCHEZ,
Defendant.

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An Order to Show Cause (“OSC”) filed November 20, 2013,

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directed Defendant Humberto Leon Shanchez, Jr. (“Defendant”) to

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explain “why sanctions should not be imposed against him under

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Rule 16(f) of the Federal Rules of Civil Procedure for failure to

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file a timely final pretrial statement and/or for his failure to

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follow court orders.” (OSC 2:8-13, ECF No. 39.) The November 20,

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2013 OSC warned Defendant “that the failure to timely respond to

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[the OSC] . . . could result in sanctions, including the striking

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of Defendant’s Answer filed April 4, 2012, and the entry of

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default by the Clerk of the Court.” (Id. at 2:15-24.) Defendant

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did

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whether

not

respond

to

Defendant’s

the

OSC.

Answer

Therefore,

should
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be

the

Court

stricken

and

considers
default

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entered.

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“District courts have inherent power to control their

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dockets and may impose sanctions, including dismissal, in the

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exercise of that discretion.” Oliva v. Sullivan, 958 F.2d 272,

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273 (9th Cir. 1991); see also Ferdik v. Bonzelet, 963 F.2d 1258,

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1260

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Procedure 41(b), the district court may dismiss an action for

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failure to comply with any order of the court.”). The concept of

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dismissal as a sanction applies equally to the entry of default.

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(9th

Cir.

1992)

(“Pursuant

to

Federal

Rule

of

Civil

Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011).

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“[The Ninth Circuit has] identified five
factors that a district court must consider
before dismissing a case or declaring a
default:
(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 other party; (4) the
public policy favoring the disposition of
cases
on
their
merits;
and
(5)
the
availability of less drastic sanctions.”

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Id. (quoting Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1412

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(9th Cir. 1990)).

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The first and second factors weigh in favor of entering

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default in this case because Defendant’s non-compliance with the

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OSC

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expeditious resolution of litigation and undermines the Court’s

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ability to manage its docket. See Yourish v. Cal. Amplifier, 191

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F.3d 983, 990 (9th Cir. 1999) (stating “the public’s interest in

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expeditious resolution of litigation always favors dismissal”);

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Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (“It is

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incumbent

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subject to routine noncompliance of litigants.”).

and

past

upon

orders

the

has

Court

impaired

to

manage

2

the

its

public’s

docket

interest

without

in

being

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The third factor concerning the risk of prejudice to

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Plaintiff considers the strength of a party’s excuse for non-

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compliance. See Pagtalunan, 291 F.3d at 642-43 (stating that “the

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risk of prejudice [is related] to the [defendant’s] reason for

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[non-compliance]”). Since Defendant has provided no reason for

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his non-compliance, the third factor also favors dismissal.

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The fourth factor concerning the public policy favoring

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disposition of cases on their merits, weighs against entering

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default. Dreith, 648 F.3d at 788 (“The fourth factor, resolution

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of cases on their merits, always weighs against dismissal.”).

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The

fifth

to the November 20, 2013 OSC despite the warning that his Answer

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could be stricken and default entered as a result. See Ferdick,

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963 F.2d at 1262 (stating “a district court’s warning to a party

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that

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dismissal

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requirement”).

can

Since

satisfy

the

default,

the

the

balance

Defendant’s

court’s

order

‘consideration

of

the

will
of

factors

result

of

in

alternatives’

strongly

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shall be entered by the Clerk of the Court. Further, the final

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pretrial

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January 13, 2014, and trial scheduled to commence at 9:00 a.m. on

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February 25, 2014, are VACATED.

to

stricken

commence

at

and

favors

entering

scheduled

is

favor

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conference

Answer

in

has

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obey

weighs

Court

entering default in this case since Defendant failed to respond

to

also

the

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failure

sanctions,

whether

considered

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drastic

concerning

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his

less

factor

11:00

default

a.m.

on

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Further, a status conference is scheduled to commence

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at 9:00 a.m. on April 28, 2014. A status report shall be filed

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fourteen

(14)

days

prior

to

the
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status

conference

in

which

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Plaintiff shall explain only what action has been taken, if any,

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that Plaintiff opines is sufficient to prevent this action from

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being dismissed for lack of prosecution.

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Dated:

December 4, 2013

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