Parise v. Union Pacific Railroad

Filing 21

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/4/14 ORDERING the hearing date of 8/20/14 on defendant's M 18 MOTION to DISMISS be VACATED; and RECOMMENDING that this action be dismissed with prejudice; and the Clerk of Court be directed to close this case. Referred to Judge Kimberly J. Mueller; 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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JOHN PARISE, JR.,

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No. 2:14-cv-0036 KJM CKD PS

Plaintiff,
v.

ORDER and FINDINGS AND
RECOMMENDATIONS

UNION PACIFIC RAILROAD,
Defendant.

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This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to

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Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On June 11,

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2014 defendant filed a motion to dismiss. The motion was noticed to be heard on July 30, 2014.

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On July 18, 2014, because plaintiff had not filed either an opposition or a statement of

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non-opposition to the motion, the undersigned continued the hearing on the motion to August 20,

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2014 and directed plaintiff to file an opposition to the motion, or a statement of non-opposition

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thereto, no later than July 30, 2014. Plaintiff was advised that failure to file an opposition would

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be deemed a statement of non-opposition to the pending motion and would result in a

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recommendation that this action be dismissed.

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Although the deadlines have now passed, the court docket reflects that plaintiff has not

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filed an opposition to the motion or a statement of non-opposition to the motion. The Federal

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Rules of Civil Procedure provide for dismissal of actions based on lack of prosecution. Fed. R.
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Civ. P. 41(b). Pro se litigants are bound by the rules of procedure, even though pleadings are

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liberally construed in their favor. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). In

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determining whether to dismiss for lack of prosecution, generally the court considers (1) the

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public’s interest in expeditious resolution of litigation, (2) the court’s need to manage its docket,

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(3) the risk of prejudice to the defendants, (4) the public policy favoring disposition of cases on

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their merits, and (5) the availability of less drastic sanctions. See, e.g., Al-Torki v. Kaempen, 78

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F.3d 1381, 1384 (9th Cir. 1996). The court may dismiss a case sua sponte for lack of prosecution

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by the plaintiff. Hamilton Copper & Steel Corp. v. Primary Steel, Inc., 898 F.2d 1428 (9th Cir.

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1990). Sua sponte dismissal requires a “close focus” on consideration of “less drastic

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alternatives” and whether or not there has been a “warning of imminent dismissal of the case.”

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Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992).

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In determining that this action will be dismissed, the court has considered all the factors

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set forth in Al-Torki. The first two factors on their face favor the imposition of sanctions in this

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case brought by plaintiff and which has been proceeding forward since plaintiff initiated this

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action on January 7, 2014. See Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990).

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Regarding the third factor, defendant already has briefed its motion to dismiss, and would be

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prejudiced by the need for further litigation of this matter despite plaintiff’s non-responsiveness.

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Moreover, delay itself generally is prejudicial--witness memories fade and evidence becomes

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stale or undiscoverable. While the fourth factor favors resolution on the merits, in this case

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plaintiff has declined to oppose the motion to dismiss and thus has precluded the court’s

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evaluation of the potential merits of such an opposition.

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Focusing on the fifth Al-Torki factor and warning regarding imminent dismissal, as

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required by Oliva, the court in its order of July 18, 2014 has advised plaintiff that this action is

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subject to dismissal, directed plaintiff to file opposition, and granted ample additional time to

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oppose the pending motion after plaintiff failed to timely oppose defendants’ motion to dismiss,

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all to no avail. In light of plaintiff’s failures, the court concludes there is no suitable alternative

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less drastic sanction to dismissal. The undersigned will therefore recommend that this action be

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dismissed for failure to prosecute the action and for failure to comply with court orders and Local

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Rules. See Fed. R. Civ. P. 41(b); L.R. 110.

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Accordingly, IT IS HEREBY ORDERED that the hearing date of August 20, 2014 on
defendant’s motion to dismiss is vacated; and

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IT IS HEREBY RECOMMENDED that:

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1. This action be dismissed with prejudice; and

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2. The Clerk of Court be directed to close this case.

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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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: August 4, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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