Hill v. Union Security Insurance Company

Filing 6

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 4/30/15 recommending that this action be dismissed, without prejudice.F&R referred to Judge Morrison C. England, Jr. Objections to F&R due within 14 days. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THAJII K. HILL,

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No. 2:14cv2278-MCE-CMK

Plaintiff,
vs.

FINDINGS AND RECOMMENDATIONS

UNION SECURITY INSURANCE
COMPANY,

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Defendant.
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Plaintiff, who is proceeding pro se, brings this civil action. Based on the

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discussion below, the undersigned finds it appropriate to dismiss this action for plaintiff’s lack of

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prosecution and failure to comply with court rules and orders.

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On December 19, 2014, the court issued an order setting an initial scheduling

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conference for April 29, 2015, at 10:00 a.m. before the undersigned in Redding, California. That

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order required plaintiff to complete service of process on the named defendant(s) within 120

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days. Plaintiff was cautioned that this action may be dismissed if service of process is not

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accomplished within the 120 days provided in Federal Rule of Civil Procedure 4(m). In addition,

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plaintiff was ordered to submit a status report addressing, inter alia, the status of service of

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process within seven days prior to the scheduling conference.
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Plaintiff failed to file the required status report, failed to appear at the scheduling

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conference, and has not returned service of process indicating service has been completed. In

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fact, plaintiff has done nothing to prosecute this case after he filed the complaint.

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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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comply with an order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,

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1260-61 (9th Cir. 1992).

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Having considered these factors, and in light of plaintiff’s failure to prosecute this

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case as directed, the court finds that dismissal of this action is appropriate. Plaintiff failed to file

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a status report, has failed to inform the court as to the status of service, and failed to appear at the

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scheduling conference as ordered. In addition, service on the defendant has not been completed,

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and more than 120 has passed since the filing of the complaint. See Fed. R. Civ. Proc. 4(m).

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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.

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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: April 30, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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