Gomez v. Gomez et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 7/29/2013 RECOMMENDING that this action be dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and orders; and that plaintiff's 2 motion for preliminary injunctive relief be denied as moot. Referred to Judge John A. Mendez; Objections due within 14 days.(Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ANTHONY GOMEZ,
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No. 2:13-CV-0289-JAM-CMK
Plaintiff,
vs.
FINDINGS AND RECOMMENDATIONS
DANIEL GOMEZ, et al.,
Defendants.
/
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Plaintiff, who is proceeding pro se, brings this civil action. The matter was set for
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an initial scheduling conference before the undersigned on June 26, 2013. Plaintiff neither filed a
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scheduling conference statement prior to the hearing, nor appeared at the hearing, both as
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required under the court’s local rules as well as the court’s February 15, 2013, order.
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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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follow local rules. See Ghazali, 46 F.3d at 53.
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Having considered these factors, and in light of plaintiff’s failure to prosecute this
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action by filing the required scheduling conference statement or appearing at the hearing, the
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court finds that 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 and that plaintiff’s motion for preliminary injunctive relief (Doc. 2) be denied as moot.
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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: July 29, 2013
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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