Tavake v. Allied Insurance Company

Filing 86

FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/30/2015 RECOMMENDING that the Stay in this action be lifted; Plaintiff's 37 Amended Complaint be dismissed without prejudice; and this action be closed; Referred to Judge Kimberly J. Mueller; Objections due within 14 days after being served with these F & R's. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SAM TAVAKE and TAMI TAVAKE,

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No. 2:11-cv-3259 KJM CKD PS (TEMP)

Plaintiffs,
v.

FINDINGS AND RECOMMENDATIONS

ALLIED INSURANCE COMPANY, et al.,
Defendants.

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Plaintiffs are proceeding pro se in the above-entitled action. The matter was referred to a
United States Magistrate Judge under Local Rule 302(c)(21).
On March 21, 2013, this action was stayed. (Dkt. No. 69.) On September 24, 2015, the

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court issued an order setting this matter for a status conference on November 6, 2015. (Dkt. No.

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76.) That order also required plaintiffs to file status reports on or before October 23, 2015. On

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October 5, 2015, plaintiffs signed a stipulated dismissal with prejudice as to some of the

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defendants in this action. (Dkt. No. 77.) Neither plaintiff, however, filed a status report or

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appeared at the November 6, 2015 status conference, nor did anyone appear on behalf of either

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plaintiff. (Dkt. No. 83.)

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Accordingly, on November 6, 2015, the undersigned issued an order to show cause in

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writing within fourteen days as to why this action should not be dismissed for lack of prosecution.

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(Dkt. No. 85.) Plaintiffs were cautioned that failure to file a written response to that order would
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result in the undersigned recommending that this matter be dismissed. (Id.) Nonetheless, the

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time for plaintiffs to respond has expired and neither plaintiff has responded to the court’s order

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in any way.

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ANALYSIS
The factors to be weighed in determining whether to dismiss a case for lack of prosecution

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are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need

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to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring

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disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of

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El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.

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1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that

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should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d

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at 1260.

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Failure of a party to comply with any order of the court “may be grounds for imposition

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by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of

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the Court.” Local Rule 110. Any individual representing himself or herself without an attorney

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is nonetheless bound by the Federal Rules of Civil Procedure, the Local Rules, and all applicable

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law. Local Rule 183(a). A party’s failure to comply with applicable rules and law may be

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grounds for dismissal or any other sanction appropriate under the Local Rules. Id.

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Here, plaintiffs have failed to file a timely status report and failed to appear at the Status

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Conference set by court order. Moreover, the court issued an order to show cause that provided

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plaintiffs with an opportunity to show good cause for their failure to actively participate in this

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action but plaintiffs failed to respond to that order in any way. The order to show cause

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specifically warned plaintiffs that the failure to file a written response to that order would result in

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a recommendation that this matter be dismissed.

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Plaintiffs’ lack of prosecution of this case renders the imposition of monetary sanctions

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futile. Moreover, the public interest in expeditious resolution of litigation, the court’s need to

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manage its docket, and the risk of prejudice to the defendants all support the imposition of the

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sanction of dismissal. Only the public policy favoring disposition on the merits counsels against
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dismissal. However, plaintiffs’ failure to prosecute the action in any way makes disposition on

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the merits an impossibility. The undersigned will therefore recommend that this action be

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dismissed due to plaintiffs’ failure to prosecute as well as their failure to comply with the court’s

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orders. See FED. R. CIV. P. 41(b).

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1) The stay in this action be lifted;

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2) Plaintiff’s June 1, 2012 amended complaint (Dkt. No. 37) be dismissed without

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prejudice; and
3) This action be closed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 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 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 and filed within seven days after service of the objections. The parties are advised

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that failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: November 30, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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BVD/tavake3259.dlop.f&rs.docx

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