Modabber v. United States of America

Filing 8

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 8/13/14 RECOMMENDING that this action be dismissed with prejudice pursuant to FRCP 41(b) and 4(m) and Local Rules 110 and 183(a). Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days after being served with these findings and recommendations. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AHMED MODABBER,

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No. 2:12-cv-2714 MCE AC

Plaintiff,
v.

FINDINGS & RECOMMENDATIONS

UNITED STATES OF AMERICA,
Defendant.

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Plaintiff, proceeding in this matter pro se, filed the above entitled action on November 5,

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2012 against defendant United States of America and paid the filing fee in full. Because it did not

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appear that plaintiff accomplished service on defendant (timely or otherwise), he was directed on

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July 1, 2014 to accomplish service on defendant on or before July 31, 2014. Plaintiff, however,

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has not responded to the Court’s order, and there is no indication that defendant has been served.

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

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

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

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

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

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

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to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute or comply
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with the rules of civil procedure or the court’s orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260

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

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an action for failure to comply with any order of the court.”); Pagtalunan v. Galaza, 291 F.3d 639,

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642-43 (9th Cir. 2002) (affirming district court’s dismissal of case for failure to prosecute when

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habeas petitioner failed to file a first amended petition). This court’s Local Rules are in accord.

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See E.D. Local Rule 110 (“Failure of counsel or of a party to comply with these Rules or with any

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order of the Court may be grounds for imposition by the Court of any and all sanctions authorized

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by statute or Rule or within the inherent power of the Court.”); E.D. Local Rule 183(a) (providing

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that a pro se party’s failure to comply with the Federal Rules of Civil Procedure, the court's Local

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Rules, and other applicable law may support, among other things, dismissal of that party’s

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action).

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

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prosecute, failure to comply with a court order, or failure to comply with a district court’s local

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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 Cir.

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1995), cert. denied, 516 U.S. 838 (1995). The Ninth Circuit Court of Appeals has stated that

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“[t]hese factors are not a series of conditions precedent before the judge can do anything, but a

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way for a district judge to think about what to do.” In re Phenylpropanolamine (PPA) Prods.

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

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Although involuntary dismissal can be a harsh remedy, on balance the five relevant

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factors weigh in favor of dismissal of this action. The first two factors strongly support dismissal

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of this action. Plaintiff’s failure to serve defendant and to respond to this Court’s order strongly

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suggests that plaintiff has abandoned this action or is not interested in seriously prosecuting it.

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See, e.g., Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in

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expeditious resolution of litigation always favors dismissal.”). Any further time spent by the
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court on this case, which plaintiff has demonstrated a lack of any serious intention to pursue, will

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consume scarce judicial resources and take away from other active cases. See Ferdik, 963 F.2d at

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1261 (recognizing that district courts have inherent power to manage their dockets without being

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subject to noncompliant litigants).

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In addition, the third factor, which considers prejudice to a defendant, should be given

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some weight. See Ferdik, 963 F.2d at 1262. Although the Court’s docket does not reflect that the

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complaint has been served upon defendant, the defendant remains named in a lawsuit. It is

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difficult to quantify the prejudice suffered by defendant here; however, it is enough that defendant

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has been named in a lawsuit that plaintiff has effectively abandoned. At a minimum, defendant

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has been prevented from attempting to resolve this case on the merits by plaintiff’s unreasonable

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delay in prosecuting this action. Unreasonable delay is presumed to be prejudicial. See, e.g., In

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re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d at 1227.

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

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dismissal of this action. The Court has actually pursued remedies that are less drastic than a

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recommendation of dismissal, including providing plaintiff with additional time to serve

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defendant in compliance with the Federal Rules of Civil Procedure. See Malone v. U.S. Postal

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Serv., 833 F.2d 128, 132 (9th Cir. 1987) (“[E]xplicit discussion of alternatives is unnecessary if

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the district court actually tries alternatives before employing the ultimate sanction of dismissal.”),

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cert. denied, 488 U.S. 819 (1988). The Court provided plaintiff with the opportunity to remedy

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his apparent failure to timely serve defendant with process. Having failed to receive a response

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from plaintiff, the Court finds no suitable alternative to a recommendation for dismissal of this

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action.

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The Court also recognizes the importance of giving due weight to the fourth factor, which

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addresses the public policy favoring disposition of cases on the merits. However, for the reasons

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set forth above, factors one, two, three, and five strongly support a recommendation of dismissal

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of this action, and factor four does not materially counsel otherwise. Dismissal is proper “where

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at least four factors support dismissal or where at least three factors ‘strongly’ support dismissal.”

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Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations and quotation marks
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omitted). Under the circumstances of this case, the other relevant factors outweigh the general

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public policy favoring disposition of actions on their merits. See Ferdik, 963 F.2d at 1263.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed with

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prejudice pursuant to Federal Rule of Civil Procedure 41(b) and 4(m) and Local Rules 110 and

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183(a).

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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)(1). 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. 28 U.S.C. § 636(b)(1); see also E.D.

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Local Rule 304(b). Such a document should be captioned “Objections to Magistrate Judge's

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Findings and Recommendations.” Any response to the objections shall be filed with the court

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and served on all parties within fourteen days after service of the objections. E.D. Local Rule

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304(d). Failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst,

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951 F.2d 1153, 1156-57 (9th Cir. 1991).

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DATED: August 13, 2014

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