Mulgrew v. Green Tree Servicing LLC et al

Filing 12

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 10/21/15 RECOMMENDING that this action be dismissed, without prejudice, for lack of prosecution and failure to comply with court rules andorders. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY MULGREW, JR.,

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Plaintiff,

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No. 2:14cv2998-MCE-CMK

vs.

FINDINGS AND RECOMMENDATION

GREEN TREE SERVICING LLC,
et al.,

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Defendants.
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/

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Plaintiff, proceeding in propria persona, brings this civil action under 28 U.S.C.
§ 1332.

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On May 21, 2015, the court issued an order determining that service of the

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complaint is appropriate. That order required plaintiff to submit to the United States Marshal,

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within 15 days of the date of service of the order, a completed summons and copies of the

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complaint, and file a statement with the court within 20 days that said documents have been

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submitted. Plaintiff was warned that failure to comply may result in dismissal of this action for

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lack of prosecution and failure to comply with court rules and orders. See Local Rule 110. More

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than 20 days have elapsed and plaintiff has not complied.

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In addition, on May 29, 2015, mail directed to plaintiff was returned by the United

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States Postal Service as undeliverable. Pursuant to Eastern District of California Local Rule

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183(b), any party appearing pro se must file and serve a notice of change of address within 63

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days of mail being returned. To date, more than 63 days have elapsed since mail was returned

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and plaintiff has not notified the court of a change of address.

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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 and to submit a notice of change of address, the court finds that dismissal of this

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action is appropriate.

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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: October 21, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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