Jackson v. Southwest Countrywide 2007 Corporate Pass-Through Certificate Series 2007, et al

Filing 8

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 8/8/2017 ORDERING the 8/11/2017 Status (Pretrial Scheduling) Conference be VACATED. RECOMMENDING that this action be dismissed without prejudice; and this action be closed. Referred to Judge Garland E. Burrell, Jr. Objections due within 14 days after being served with these findings and recommendations. (Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEPHEN JACKSON,

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Plaintiff,

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No. 2:16-cv-3032 GEB DB PS

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

SOUTHWEST COUNTRYWIDE 2007
CORPORATE PASS-THROUGH
CERTIFICATE SERIES, et al.,

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Defendants.

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Plaintiff Stephen Jackson, proceeding pro se, commenced this action on December 28,

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2016, by filing a complaint and paying the required filing fee. (ECF No. 1.) This matter was

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referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
On April 12, 2017, the court issued an order setting this matter for a Status (Pretrial

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Scheduling) Conference before the undersigned on May 19, 2017. (ECF No. 4.) The April 12,

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2017 order advised plaintiff that Rule 4(m) of the Federal Rules of Civil Procedure provides that

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a defendant must be dismissed if service of the summons and complaint is not accomplished on

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the defendant within 90 days after the complaint was filed. On May 11, 2017, the undersigned

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issued an order to show cause which also continued the Status (Pretrial Scheduling) Conference

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due to plaintiff’s failure to file a timely status report. (ECF No. 5.)

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On May 23, 2017, plaintiff filed a response to the May 11, 2017 order to show cause.

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(ECF No. 6.) Accordingly, on June 13, 2017, the undersigned issued an order discharging the

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May 11, 2017 order to show cause and continuing the Status (Pretrial Scheduling) Conference to

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August 11, 2017. (ECF No. 7.) The order also ordered plaintiff to file a status report on or before

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July 28, 2017. Moreover, the order cautioned plaintiff that failure to timely comply with the

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order might result in a recommendation that this case be dismissed. (Id. at 2.) Nonetheless, the

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time provided plaintiff has expired and plaintiff has not responded to the June 13, 2017 order in

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any way. Nor has plaintiff filed proof of service on a defendant and no defendant has appeared in

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this action.

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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 has repeatedly failed to comply with the court’s orders. The June 13, 2017

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order specifically warned plaintiff that the failure to timely comply with that order could result in

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a recommendation that this matter be dismissed. Plaintiff failed to respond to that order in any
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manner. Moreover, Rule 4(m) of the Federal Rules of Civil Procedure provides that a defendant

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must be dismissed if service of the summons and complaint is not accomplished on the defendant

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within 90 days after the complaint was filed. More than seven months have passed since

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plaintiff’s complaint was filed and the docket does not reflect proof of service on, or the

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appearance of, any defendant.

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In this regard, plaintiff’s lack of prosecution of this case renders the imposition of

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monetary sanctions futile. Moreover, the public interest in expeditious resolution of litigation, the

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court’s need to manage its docket, and the risk of prejudice to the defendants all support the

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imposition of the sanction of dismissal. Only the public policy favoring disposition on the merits

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

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disposition on the merits an impossibility. The undersigned will therefore recommend that this

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action be dismissed due to plaintiff’s failure to prosecute as well as plaintiff’s failure to comply

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

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Accordingly, IT IS HEREBY ORDERED that the August 11, 2017 Status (Pretrial
Scheduling) Conference is vacated.

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Also, IT IS HEREBY RECOMMENDED that:

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1) Plaintiff’s December 28, 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 will be 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)(1). Within fourteen (14)

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days after being served with these findings and recommendations, plaintiff may file written

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objections with the court. A document containing objections should be titled “Objections to

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Magistrate Judge’s Findings and Recommendations.”

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Plaintiff is advised that failure to file objections within the specified time may, under

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certain circumstances, waive the right to appeal the District Court’s order. See Martinez v. Ylst,

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951 F.2d 1153 (9th Cir. 1991).

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Dated: August 8, 2017

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DLB:6
DB\orders\orders.pro se\jackson3032.dlop.f&rs

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