Shibata v. G4S Secure Solutions (USA) Inc.

Filing 6

FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 8/2/2017 RECOMMENDING that this action be dismissed, without prejudice, for lack of prosecution and for failure to comply with the court's order; REFERRING this matter to Judge Troy L. Nunley; ORDERING that any objections be filed within twenty-one (21) days. (Michel, G.)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

TOMO SHIBATA,

12
13
14
15

No. 2:17-cv-1208 TLN AC (PS)

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

G4S SECURE SOLUTIONS (USA) INC.,
Defendant.

16
17

Plaintiff is proceeding in this action pro se. The action was accordingly referred to the

18

undersigned for pretrial matters by E.D. Cal. R. (“Local Rule”) 302(c)(21). On June 12, 2017, the

19

court instructed plaintiff that she needed to file a complaint compliant with the Federal Rules of

20

Civil Procedure in order for the case to proceed. ECF No. 2. The court granted plaintiff 30 days

21

to submit a complaint. Id. On July 12, 2017, plaintiff submitted a “status report” that cannot be

22

construed as a complaint or a request for an extension of time. ECF No. 3. On July 14, 2017, the

23

court issued an order to show cause why the case should not be dismissed for failure to prosecute,

24

providing plaintiff 14 days to respond. ECF No. 4. Plaintiff was cautioned that failure to comply

25

could lead to a recommendation that the action be dismissed.

26

Plaintiff submitted a response that does not indicate that plaintiff will have any ability to

27

submit a complaint compliant with the Federal Rules of Civil Procedure. ECF No. 5. In this

28

document, plaintiff moves the court to dismiss the case without prejudice, and asks the court to
1

1

refund her filing fee. Id. at 5. While the court finds that dismissal without prejudice is

2

appropriate, the court will not refund plaintiff’s filing fee. “[N]umerous courts have found that

3

the voluntary dismissal of an action . . . does not entitle the litigant to a refund of filing fees.”

4

Grindling v. Martone, No. CIV. 12-00361 LEK, 2012 WL 4502954, at *2 (D. Haw. Sept. 28,

5

2012). Here, plaintiff chose to file this action and pay the filing fee, and despite having never

6

filed a complaint, she has nonetheless submitted several filings for this court’s consideration. No

7

refund is warranted.

8
9
10

Therefore, IT IS HEREBY RECOMMENDED that this action be dismissed, without
prejudice, for lack of prosecution and for failure to comply with the court’s order. See Fed. R.
Civ. P. 41(b) (lack of prosecution); Local Rule 110 (failure to comply with court orders).

11

These findings and recommendations are submitted to the United States District Judge

12

assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one

13

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

14

objections with the court. Such document should be captioned “Objections to Magistrate Judge’s

15

Findings and Recommendations.” Local Rule 304(d). Plaintiff is advised that failure to file

16

objections within the specified time may waive the right to appeal the District Court’s order.

17

Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

18

DATED: August 2, 2017

19
20
21
22
23
24
25
26
27
28
2