Laskiewicz v. Swartz et al

Filing 83

FINDINGS and RECOMMENDATIONS ORDER signed by Magistrate Judge Craig M. Kellison on 6/19/2018 RECOMMENDS that this action be dismissed without prejudice for lack of prosecution and failure to comply with court rules and orders; Referred to Judge John A. Mendez; Objections due within 14 days after being served with these F & R's. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID LEE LASKIEWICZ,

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No. 2:11-cv-2828-JAM-CMK

Plaintiff,
vs.

ORDER

RUSSELL SWARTZ, et al.,
Defendants.
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Plaintiff, proceeding in this action in propria persona, brings this civil action. The

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remaining defendants in this action are defendants Swartz and Kinney. Plaintiff requested a

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Clerk’s Entry of Default as to the defendants be entered based on the defendants’ failure to

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respond to the complaint. The Clerk’s Entry of Default was entered on September 5, 2012 (Doc.

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42). Plaintiff thereafter moved for default judgment, and a hearing was held on December 3,

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2014. Plaintiff, however, failed to produce any evidence to support his allegations relating to any

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damages. The hearing was continued to March 4, 2015, to provide plaintiff additional time to

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submit evidence in support of his damages claim. Prior to the hearing, plaintiff requested the

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court take the hearing off calendar, and requested additional time to obtain the necessary

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evidence. On February 20, 2015, the court granted plaintiff’s request, the hearing was taken off

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calendar, plaintiff was ordered to file a status report within 60 days, and was ordered to notify the
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court when he was ready to proceed, no longer than 180 days thereafter.
Plaintiff submitted his first status report on March 9, 2015, explaining some of his

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efforts in obtaining possible damages evidence. He filed a second status report on April 15,

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2015, as well as a renewed motion for default judgment, again setting forth some of his efforts to

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obtain possible evidence to support his damages claim. He has not, however, provided the court

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with any further evidence to support his damages claim.

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As set forth at the hearing on his motion for default judgment, and the Court

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orders following, plaintiff is required to support his damages claim. Conclusory statements in his

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motion for default judgment are insufficient to support any damages claim. Federal Rule of Civil

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Procedure 55(b)(2) governs applications to the court for entry of default judgment. Upon entry

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of default, the complaint’s factual allegations regarding liability are taken as true, but allegations

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regarding the amount of damages must be proven. See Fed. R. Civ. P 55(b)(2); Geddes v. United

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Fin. Group, 559 F.2d 557 (9th Cir. 1977); Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d

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Cir.1990) (citations omitted) (“A consequence of the entry of a default judgment is that the

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factual allegations of the complaint, except those relating to the amount of damages, will be

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taken as true.”). When a plaintiff’s damages are unliquidated (i.e. capable of ascertainment from

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definite figures contained in documentary evidence or in detailed affidavits) or punitive, they

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require “proving up” through an evidentiary hearing or some other means. See Dundee Cement

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Co. v. Howard Pipe & Concrete Prods., 722 F.2d 1319, 1323-24 (7th Cir.1983).

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Following the hearing in December 2014, plaintiff was allowed time to provide

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proof to the court in support of his damages claim. He has failed to do so, despite having an

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extensive amount of time to do so. As the Court has received nothing from the plaintiff in over

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three years, it appears plaintiff is no longer interested in pursuing this matter.

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The court must weigh five factors before imposing the harsh sanction of

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dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v.

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U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public’s
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interest in expeditious resolution of litigation; (2) the court’s need to manage its own docket; (3)

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the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran,

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46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an

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appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor.

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See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is

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appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421,

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1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to

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comply with an order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,

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1260-61 (9th Cir. 1992).

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Having considered these factors, and in light of plaintiff’s failure to submit any

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further status reports or evidence in support of his damages claim, the undersigned finds plaintiff

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has failed to comply with court orders and rules, and finds dismissal of this action is appropriate.

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Based on the foregoing, the undersigned recommends that this action be

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dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and

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orders.

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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 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: June 19, 2018
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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