Varletta Young v. County of San Joaquin et al

Filing 11

ORDER and FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 7/1/2014 VACATING the 10 Order to Show Cause; RECOMMENDING that this action be dismissed for failure to prosecute and failure to comply with a Court order; REFERRING this matter to Judge Kimberly J. Mueller; ORDERING that any objections be filed within fourteen days. (Michel, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEI ANN VARLETTA YOUNG,

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No. 2:13-cv-0761 KJM AC PS

Plaintiff,
v.

ORDER AND

COUNTY OF SAN JOAQUIN, et al.,

FINDINGS AND RECOMMENDATIONS

Defendants.

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This action was referred to the undersigned pursuant to Local Rule 302(c)(21). On May

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13, 2014, plaintiff was ordered to show cause why this action should not be dismissed for failure

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to prosecute. ECF No. 10. Plaintiff has not responded to the Court’s order.

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Courts do not take failures to comply with Court orders or failures to prosecute lightly.

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Federal Rule of Civil Procedure 41(b) authorizes involuntary dismissals for failure “to prosecute

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or to comply with [the federal] rules or a court order.” Fed. R. Civ. P. 41(b). Unless the Court in

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its order for dismissal otherwise specifies, a dismissal under this rule operates as an adjudication

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upon the merits. See id. To determine whether dismissal is appropriate, the Court must consider

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five factors: “(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 defendants/respondents; (4) the availability of less

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drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.”

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Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).
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In determining to recommend that this action be dismissed, the court has considered these

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five factors. Here, the first two factors strongly support dismissal of this action. Plaintiff’s

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failure to comply with the Local Rules and the Court’s order to show cause suggests that she has

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abandoned this action, which was filed over one year ago. Further time spent by the court on this

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matter will consume scarce judicial resources in addressing litigation which plaintiff demonstrates

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no intention to pursue. The fifth factor also favors dismissal. The Court has advised plaintiff of

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the requirements under the Local Rules and granted ample time to respond to the Court’s order,

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all to no avail. The Court finds no suitable alternative to dismissal of this action.

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Under the circumstances of this case, the third factor, prejudice to defendants from

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plaintiff’s failure to prosecute, should be given little weight as none of the defendants have yet

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been served. The fourth factor, public policy favoring disposition of cases on their merits, weighs

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against dismissal of this action as a sanction. However, for the reasons set forth above, the first,

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second, and fifth factors strongly support dismissal and the third factor does not mitigate against

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it. Under the circumstances of this case, those factors outweigh the general public policy favoring

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disposition of cases on their merits.

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Accordingly, IT IS HEREBY ORDERED that the order to show cause is vacated; and

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IT IS HEREBY RECOMMENDED that this action be dismissed for failure to prosecute

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and failure to comply with a Court order.

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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 response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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

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DATED: July 1, 2014

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