Iegorova v. Target Corporation

Filing 9

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/27/15 RECOMMENDING that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). Defendant's 7 motion to dismiss be denied as moot. The Clerk be directed to vacate all dates and close this case. Matter referred to Judge Morrison C. England, Jr.. Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. (Kastilahn, 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 LIUDMYLA IEGOROVA, 12 Plaintiff, 13 14 v. No. 2:14-cv-3014-MCE-KJN PS FINDINGS AND RECOMMENDATIONS TARGET CORPORATION, 15 16 Defendant. 17 18 Presently pending before the court is defendant’s motion to dismiss, which was initially 19 filed on April 2, 2015, and set for hearing on May 7, 2015. (ECF No. 7.) Plaintiff failed to file 20 an opposition to the motion in accordance with Local Rule 230(c). Nevertheless, in light of 21 plaintiff’s pro se status and the court’s desire to resolve defendant’s motion on the merits, the 22 court continued the hearing on the motion and provided plaintiff with an additional opportunity to 23 file an opposition to the motion no later than May 21, 2015. (ECF No. 8.) Plaintiff was 24 specifically cautioned that failure to file an opposition to the motion by the required deadline 25 would result in a recommendation of dismissal with prejudice pursuant to Federal Rule of Civil 26 Procedure 41(b). (Id.) 27 28 Although the applicable deadline has passed, plaintiff failed to file an opposition or statement of non-opposition to the motion, nor has plaintiff even requested a further extension of 1 1 2 time to do so. As such, the court recommends dismissal at this juncture. Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to comply 3 with these Rules or with any order of the Court may be grounds for imposition by the Court of 4 any and all sanctions authorized by statute or Rule or within the inherent power of the Court.” 5 Moreover, Eastern District Local Rule 183(a) provides, in part: 6 7 8 9 Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. All obligations placed on “counsel” by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal, judgment by default, or any other sanction appropriate under these Rules. 10 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the 11 same rules of procedure that govern other litigants”) (overruled on other grounds). A district 12 court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to 13 Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or 14 fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local 15 rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act 16 sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. 17 Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action 18 pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 19 or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 20 53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground 21 for dismissal”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal 22 Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with 23 any order of the court”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 24 1986) (per curiam) (stating that district courts have inherent power to control their dockets and 25 may impose sanctions including dismissal or default). 26 A court must weigh five factors in determining whether to dismiss a case for failure to 27 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 28 rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider: 2 1 2 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. 3 4 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002); Ghazali, 46 5 F.3d at 53. The Ninth Circuit Court of Appeals has stated that “[t]hese factors are not a series of 6 conditions precedent before the judge can do anything, but a way for a district judge to think 7 about what to do.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 8 (9th Cir. 2006). 9 Although involuntary dismissal can be a harsh remedy, on balance the five relevant 10 factors weigh in favor of dismissal here. The first two Ferdik factors strongly support dismissal, 11 given that plaintiff’s failure twice to oppose defendant’s motion and failure to prosecute her case 12 have unreasonably delayed the progress of this litigation. The third Ferdik factor also favors 13 dismissal because, at a minimum, defendant has been hampered in its efforts to move this case 14 forward to a resolution on the merits. Additionally, the fifth Ferdik factor, which considers the 15 availability of less drastic measures, also supports dismissal. In this case, the court previously 16 pursued remedies that are less drastic than a recommendation of dismissal. Indeed, in an attempt 17 to avoid the harsh sanction of dismissal, the court previously provided plaintiff with an additional 18 opportunity to oppose defendant’s motion and specifically cautioned plaintiff regarding the 19 potential consequences of failure to timely comply with the court’s order. Furthermore, the court 20 finds no suitable alternative to dismissal at this juncture. Given plaintiff’s complete failure to 21 respond to the court’s orders and instructions, the imposition of monetary sanctions would be 22 futile, and the court is unable to frame any meaningful issue or evidentiary sanctions based on the 23 limited record before it. Finally, the court finds that the fourth Ferdik factor, which addresses the 24 public policy favoring disposition of cases on the merits, does not materially counsel against 25 dismissal. If anything, a disposition on the merits has been hindered by plaintiff’s own failure to 26 comply with the court’s orders and prosecute her case. In any event, the court finds that the 27 fourth Ferdik factor is outweighed by the other Ferdik factors. 28 Consequently, dismissal is appropriate. 3 1 Accordingly, for the reasons outlined above, IT IS HEREBY RECOMMENDED that: 2 1. The action be dismissed pursuant to Federal Rule of Civil Procedure 41(b). 3 2. Defendant’s motion to dismiss (ECF No. 7) be denied as moot. 4 3. The Clerk of Court be directed to vacate all dates and close this case. 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 7 days after being served with these findings and recommendations, any party may file written 8 objections with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 10 shall be served on all parties and filed with the court within fourteen (14) days after service of the 11 objections. The parties are advised that failure to file objections within the specified time may 12 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 13 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 14 15 IT IS SO RECOMMENDED. Dated: May 27, 2015 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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