Smith-Duroncelet v. Placer County Court et al

Filing 8

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 3/26/15 RECOMMENDING that plaintiff's Complaint be dismissed without prejudice. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days after being served with these findings and recommendations. (Meuleman, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOEANN SMITH-DURONCELET, 12 13 14 No. 2:14-cv-2358 MCE DAD PS Plaintiff, v. FINDINGS AND RECOMMENDATIONS PLACER COUNTY COURT, et al., 15 Defendants. 16 17 18 Plaintiff Joeann Smith-Duroncelet is currently proceeding pro se in this action. 19 Accordingly, the case has been referred to the undersigned pursuant to Local Rule 302(c)(21). 20 On December 11, 2014, the court issued an order setting a Status (Pretrial Scheduling) 21 Conference before the undersigned on February 13, 2015. (Dkt. No. 5.) Pursuant to that order, 22 plaintiff was to file and serve a written status report on or before January 30, 2015. The order 23 also advised plaintiff that: 24 failure to file a timely status report, or failure to appear at the status conference either in person or telephonically, may result in an order imposing an appropriate sanction. See Local Rules 110 and 183. 25 26 27 28 (Id. at 2.) Nonetheless, plaintiff failed to file a timely status report and also failed to appear at the February 13, 2015 Status (Pretrial Scheduling) Conference scheduled by order issued in this 1 1 action. Accordingly, on February 17, 2015, the undersigned issued an order to show cause in 2 writing within fourteen days as to why this action should not be dismissed for lack of prosecution. 3 (Dkt. No. 7.) Plaintiff was cautioned that failure to file a written response to that order would 4 result in the undersigned recommending that this matter be dismissed. (Id.) Nonetheless, the 5 time for plaintiff to respond has expired and plaintiff has not responded to the court’s order in any 6 way. 7 8 9 ANALYSIS The factors to be weighed in determining whether to dismiss a case for lack of prosecution are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need 10 to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring 11 disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of 12 El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 13 1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that 14 should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d 15 at 1260. 16 Failure of a party to comply with any order of the court “may be grounds for imposition 17 by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of 18 the Court.” Local Rule 110. Any individual representing himself or herself without an attorney 19 is nonetheless bound by the Federal Rules of Civil Procedure, the Local Rules, and all applicable 20 law. Local Rule 183(a). A party’s failure to comply with applicable rules and law may be 21 grounds for dismissal or any other sanction appropriate under the Local Rules. Id. 22 Here, plaintiff failed to file a status report, failed to appear at the Status (Pretrial 23 Scheduling) Conference and failed to respond to the court’s order to show cause, in violation of 24 this court’s orders and multiple provisions of the Local Rules. Moreover, the order to show cause 25 specifically warned plaintiff that the failure to file a written response to that order would result in 26 a recommendation that this matter be dismissed. 27 28 Plaintiff’s lack of prosecution of this case renders the imposition of monetary sanctions futile. Moreover, the public interest in expeditious resolution of litigation, the court’s need to 2 1 manage its docket, and the risk of prejudice to the defendants all support the imposition of the 2 sanction of dismissal. Only the public policy favoring disposition on the merits counsels against 3 dismissal. However, plaintiff’s failure to prosecute the action in any way makes disposition on 4 the merits an impossibility. The undersigned will therefore recommend that this action be 5 dismissed due to plaintiff’s failure to prosecute as well as the failure to comply with the court’s 6 orders. See FED. R. CIV. P. 41(b). 7 8 9 10 11 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s October 8, 2014 complaint (Dkt. No. 1) be dismissed without prejudice. These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these findings and recommendations, plaintiff may file written 12 13 objections with the court. A document containing objections should be titled “Objections to 14 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 15 objections within the specified time may, under certain circumstances, waive the right to appeal 16 the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: March 26, 2015 18 19 20 DAD:6 Ddad1\ se\duroncelet2358.dlop.f&rs.docx 21 22 23 24 25 26 27 28 3

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