Givens v. Federal National Mortgage Associates

Filing 17

ORDER signed by Judge Kimberly J. Mueller on 7/2/12 ORDERING that plaintiff's claims are DISMISSED; and this case is CLOSED. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DELORES W. GIVENS,
Plaintiff,

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No. CIV S-12-0874 KJM KJN

vs.
FEDERAL NATIONAL MORTGAGE
ASSOCIATES, et al.

ORDER

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Defendants
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On April 5, 2012, this case was removed from Sacramento County Superior Court

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and on April 11, defendants filed a motion to dismiss. ECF Nos. 1, 5. On April 20, 2012,

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plaintiff’s counsel moved to withdraw and on April 29, 2012, the court granted the motion on the

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condition that counsel notify plaintiff that if she failed to oppose the motion to dismiss, the court

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might dismiss the action for failure to prosecute. The court also warned plaintiff of this

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possibility in its order relieving counsel and directed plaintiff to file any opposition or statement

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of non-opposition no later than June 22. ECF Nos. 13, 14. Plaintiff has failed to respond both

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to the court’s order and to the pending motion to dismiss.

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Prior to dismissing for failure to prosecute under Rule 41(b), the court must
consider the factors outlined in Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986),
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namely: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to

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

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disposition of cases on their merits; and (5) the availability of less drastic sanctions.” “The

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district court has the inherent power sua sponte to dismiss a case for lack of prosecution.” Id.

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First, the public has an interest in expeditious resolution of litigation. Here,

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plaintiff has failed to timely respond to the motion to dismiss even though the hearing has been

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rescheduled and she has been given additional time. Yourish v. California Amplifier, 191 F.3d

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983, 990 (9th Cir. 1999) (“[T]he public’s interest in expeditious resolution of litigation always

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favors dismissal.”). Plaintiff’s failure timely to prosecute her case has unreasonably prolonged

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what should be an early stage of the litigation. Plaintiff’s current pro se status does not alter the

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analysis, because pro se litigants must abide equally by the federal and local rules. See, e.g.,

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King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1986). Nor does the fact that plaintiff’s counsel

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initially failed to respond, because he was seeking to withdraw following the breakdown in

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communications with his client. See Chism v. National Heritage Life Ins. Co., 637 F.2d 1328,

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1332 (9th Cir. 1981), overruled on other grounds, Bryant v. Ford Motor Co., 844 F.2d 602 (9th

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Cir. 1987) (“[I]t must be remembered that Appellant voluntarily chose (his attorneys) as his

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representative(s) in the action, and he cannot now avoid the consequences of the acts or

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omissions of (these) freely selected agent(s).”) (quotations and citations omitted). The first

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Henderson factor weighs in favor of dismissal.

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Second, plaintiff’s delays have interfered with management of this court’s docket.

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The court has had to reschedule the motion upon plaintiff’s failure timely to respond without

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being able to reach the merits of the case. See Yourish, 191 F.3d at 990 (finding the district

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court’s interest in managing its docket strongly favored dismissal because “plaintiffs tardily filed

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their motion for a written order, requiring the district court to devote further time and resources

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to this matter rather than to the merits of an amended complaint.”); Chism, 637 F.2d at 1332

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(“Appellant showed continued disregard for his obligations to the court by late filing of
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oppositions to [appellee’s] motions. The local rules established time limits to provide the court

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adequate opportunity to consider papers filed by the parties. Appellant’s disregard of these rules

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frustrated that salient purpose.”) This second factor also weighs strongly in favor of dismissal.

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Third, defendants have been prejudiced as they have spent time and money in an

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effort to defend a matter plaintiff has neglected. See Al-Torki v. Kaempen, 78 F.3d 1381, 1385

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(9th Cir. 1996) (defendant’s expenditure of resources to prepare for litigation plaintiff neglected

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constituted prejudice).

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Regarding the fourth factor, as the Ninth Circuit explained in Morris v. Morgan
Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991), “although there is indeed a policy favoring

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disposition on the merits, it is the responsibility of the moving party to move towards that

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disposition at a reasonable pace, and to refrain from dilatory and evasive tactics.” The court

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finds this factor to be evenly balanced, despite the strong preference for resolution on the merits,

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given that plaintiff has failed to fulfill her responsibility of moving the case towards disposition

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on the merits at a reasonable pace and in good faith.

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As for the fifth and final factor, “[t]he district court need not exhaust every

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sanction short of dismissal before finally dismissing a case, but must explore possible and

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meaningful alternatives.” Henderson, 779 F.2d at 1424 (citing Nevijel v. North Coast Life

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Insurance Co., 651 F.2d 671, 674 (9th Cir.1981)). Both the court and plaintiff’s counsel warned

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plaintiff that failure to follow the federal and local rules could result in dismissal. ECF Nos. 13,

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14. Given plaintiff’s failure to respond to the court’s order and her former counsel’s letter, and

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the likelihood that monetary sanctions would have no impact, dismissal is appropriate.

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Thompson v. Housing Authority of City of Los Angeles, 782 F.2d 829, 832 (9th Cir. 1986)

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(finding dismissal appropriate after the court granted several pretrial conference continuances,

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plaintiff was not prepared for the conferences, and plaintiff was warned that failure to be

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prepared would result in a dismissal). The court finds this factor also favors dismissal.

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Henderson factors one, two, three and five weigh in favor of the sanction of dismissal

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with prejudice, and factor four is evenly balanced. Given the court’s warning to plaintiff

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concerning her duty to assume the responsibility to pursue her case, the court finds dismissal

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appropriate in the light of plaintiff’s indifference. Plaintiff’s claims are therefore DISMISSED.

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This case is closed.

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IT IS SO ORDERED.
DATED: July 2, 2012.

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UNITED STATES DISTRICT JUDGE

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