Redmond v. Unirush LLC et al

Filing 10

FINDINGS and RECOMMENDATIONS, recommending that 8/1/2013 4 Motion to Dismiss be denied as moot; plaintiff's claims be dismissed without prejudice for lack of prosecution; and case be closed signed by Magistrate Judge Dale A. Drozd on 10/24/2013. These Findings and Recommendations are SUBMITTED to District Judge Kimberly J. Mueller. Within 21 days after being served with these F/Rs, any party may file written Objections with Court. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CESARE REDMOND,

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No. 2:13-cv-1498 KJM DAD PS

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

VISA UNIRUSH CARD and MORGAN
GALSTER,
Defendants.
Plaintiff Cesare Redmond is proceeding pro se in this action. The action has

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therefore been referred to the undersigned pursuant to Local Rule 302(c)(21) for all purposes

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encompassed by that rule.

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On August 1, 2013, defendants filed a motion to dismiss and a proof of service.

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Pursuant to Local Rule 230(l), plaintiff’s opposition to the motion to dismiss was to be filed

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within twenty-one days after the date of service of the motion and the failure to file an opposition

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or statement of non-opposition may be deemed a waiver of opposition and may result in the

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imposition of sanctions. Id. The twenty-one day period expired and plaintiff failed to respond to

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defendants’ motion in any manner.

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Accordingly, on September 30, 2013, the court ordered plaintiff to show cause in

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writing as to why this matter should not be dismissed for lack of prosecution. (Doc. No. 8.) On

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October 10, 2013, plaintiff filed a document styled, “OPPOSITION TO MOTION TO DISMISS
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AND VOLUNTARY DISMISSAL.” (Doc. No. 9.) Therein, plaintiff asserts that the removal of

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this action from state court was improper, that the “state court still retains jurisdiction over” this

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action and that “Plaintiff VOLUNTARY (sic) DISMISSES the above-caption (sic) court action

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pursuant to the Federal Rule of Appellate Procedure Rule 42(a).” (Id. at 2-3.) Plaintiff’s filing,

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however, is unsigned and therefore is not in compliance with the requirements of Local Rule

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131(b). In any event, both his failure to take the required actions and his unsigned filing with this

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court makes it apparent that plaintiff does not intend to prosecute this action.

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ANALYSIS

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

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prosecution are as follows: (1) the public interest in expeditious resolution of litigation; (2) the

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court’s need to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy

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

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

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

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

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F.2d at 1260.

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Under the Local Rules of Practice for the United States District Court for the

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Eastern District of California, opposition, if any, to the granting of a motion in an action

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involving a prisoner “shall be served and filed . . . . not more than twenty-one (21), days after the

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date of service of the motion.” Local Rule 230(l). Failure to file an opposition may be deemed a

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waiver of any opposition and may result in the imposition of sanctions. Id.

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Failure of a party to comply with the Local Rules or any order of the court “may

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be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or

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within the inherent power of the Court.” Local Rule 110. Any individual representing himself or

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herself without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the

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Local Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with

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applicable rules and law may be grounds for dismissal or any other sanction appropriate under the

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Local Rules. Id.
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Here, plaintiff has failed to file a timely response to defendant’s motion to dismiss

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in violation of Local Rule 230. The court issued an order to show cause that provided plaintiff

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with yet another opportunity to show good cause for his failure to respond to defendant’s motion.

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Plaintiff responded to the court’s order by indicating that he wishes to voluntarily dismiss this

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action. Plaintiff’s filing, however, was unsigned in violation of Local Rule 131.

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Plaintiff’s lack of prosecution of this case renders the imposition of monetary

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

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

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the sanction of dismissal. Only the public policy favoring disposition on the merits counsels

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against dismissal. However, plaintiff’s failure to prosecute the action in any way makes

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disposition on the merits an impossibility. The undersigned will therefore recommend that this

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action be dismissed due to plaintiff’s failure to prosecute as well as his failure to comply with the

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court’s orders and the Local Rules. See FED. R. CIV. P. 41(b).

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Defendant’s August 1, 2013 motion to dismiss (Doc. No. 4) be denied as moot;

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2. Plaintiff’s claims be dismissed without prejudice due to lack of prosecution, as

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evidenced by plaintiff’s failure to file opposition or a statement of non-opposition to the motion to

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dismiss and filing indicating that he wishes to voluntarily dismiss this action; and

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3. This case be closed.

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These findings and recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

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twenty-one (21) days after being served with these findings and recommendations, any party may

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file written objections with the court.1 A document containing objections should be titled

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to objections

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shall be filed within seven (7) days after service of the objections. The parties are advised that

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Plaintiff may moot these findings and recommendations by submitting a signed notice of
voluntary dismissal without prejudice prior to the entry of judgment.
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failure to file objections within the specified time may, under certain circumstances, waive the

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

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Dated: October 24, 2013

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DAD:6
Ddad1\orders.pro se\redmond1498.dlop.f&rs.docx

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