Ruiz v. Stamper

Filing 15

ORDER signed by Magistrate Judge Deborah Barnes on 7/24/17 ORDERING that the 7/28/17 Status (Pretrial Scheduling) Conference is VACATED. IT IS HEREBY RECOMMENDED that Plaintiffs' 11/16/16 Complaint 1 be dismissed without prejudice. And This action be closed. These Findings and Recommendations are submitted to Judge Morrison C. England, Jr. Objections to these F&Rs due within fourteen days.(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ISRAEL RUIZ,

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No. 2:16-cv-2716 MCE DB PS
Plaintiff,

v.

ORDER AND
FINDINGS AND RECOMMENDATIONS

BRYAN STAMPER, dba CONCRETE
EQUIPMENT ZONE, LLC,
Defendant.

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Plaintiff is proceeding in this action pro se. This matter was, therefore, referred to the
undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
On April 10, 2017, the court issued an order setting this matter for a Status (Pretrial

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Scheduling) Conference on June 9, 2017. (ECF No. 11.) On June 9, 2017, the Status (Pretrial

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Scheduling) Conference was held. Authur A. Zorio appeared telephonically on behalf of

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defendants Bryan Stamper and Concrete Equipment Zone, LLC. However, there was no

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appearance by, or on behalf of, plaintiff Israel Ruiz.

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Accordingly, on June 12, 2017, the undersigned issued an order to show cause in a writing

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filed on or before June 26, 2017, as to why this action should not be dismissed for lack of

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prosecution. (ECF No. 14 at 1.) Plaintiff was also ordered to file an updated status report on or

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before July 14, 2017. (Id. at 2.) Plaintiff was cautioned that failure to file a written response to
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that order could result in the undersigned recommending that this matter be dismissed. (Id. at 2.)

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Nonetheless, the time provided plaintiff has expired and plaintiff has not responded to the order to

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show cause in any way.

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ANALYSIS
The factors to be weighed in determining whether to dismiss a case for lack of prosecution

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are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need

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to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring

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disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of

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El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.

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1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that

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should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d

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at 1260.

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Failure of a party to comply with the any order of the court “may be grounds for

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imposition by the Court of any and all sanctions authorized by statute or Rule or within the

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inherent power of the Court.” Local Rule 110. Any individual representing himself or herself

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without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local

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Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable

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rules and law may be grounds for dismissal or any other sanction appropriate under the Local

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Rules. Id.

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Here, plaintiff failed to attend the June 9, 2017 Status (Pretrial Scheduling) Conference.

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The undersigned issued an order to show cause that provided plaintiff with an opportunity to

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show good cause for plaintiff’s conduct and ordered plaintiff to file an updated status report.

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Plaintiff failed to respond to that order in any way. The order to show cause specifically warned

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plaintiff that the failure to file a written response to that order could result in a recommendation

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that this matter be dismissed.

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Plaintiff’s lack of prosecution of this case renders the imposition of monetary sanctions

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futile. Moreover, the public interest in expeditious resolution of litigation, the court’s need to

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manage its docket, and the risk of prejudice to the defendant all support the imposition of the
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sanction of dismissal. Only the public policy favoring disposition on the merits counsels against

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dismissal. However, plaintiff’s failure to prosecute the action in any way makes disposition on

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the merits an impossibility. The undersigned will therefore recommend that this action be

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dismissed due to plaintiff’s failure to prosecute as well as plaintiff’s failure to comply with the

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court’s orders. See Fed. R. Civ. P. 41(b).

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Accordingly, IT IS HEREBY ORDERED that the July 28, 2017 Status (Pretrial
Scheduling) Conference is vacated.

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Also, IT IS HEREBY RECOMMENDED that:

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1) Plaintiff’s November 16, 2016 complaint (ECF No. 1) be dismissed without prejudice;

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and

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2) This action be closed.

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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.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: July 24, 2017

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DLB:6
DB\orders\orders.pro se\ruiz2716.dlop.f&rs

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