Garcia v. Procter and Gamble Company

Filing 20

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 1/13/2021 RECOMMENDING that this case be dismissed without prejudice for plaintiff's failures to prosecute and to comply with court orders. Matter REFERRED to District Judge Morrrison C. England, Jr.. Within 14 days of the service of the findings and recommendations, the parties may file written objections to the findings and recommendations with the court and serve a copy on all parties. (Kastilahn, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

BRIAN GARCIA,

12
13
14
15
16

No. 2:17-cv-02591-MCE-JDP
Plaintiff,

v.
PROCTER AND GAMBLE COMPANY,
Defendant.

FINDINGS AND RECOMMENDATIONS
THAT THE COURT DISMISS THIS CASE
FOR PLAINTIFF’S FAILURES TO
PROSECUTE AND TO COMPLY WITH
COURT ORDERS
OBJECTIONS DUE WITHIN 14 DAYS

17
18

On December 1, 2020, the court issued an order resetting an initial scheduling conference

19

for December 17, 2020 and directing the parties to file a joint status report seven days prior. ECF

20

No. 15. Defendant timely filed a status report. ECF No. 17. Plaintiff, however, failed to

21

separately file his own status report or join in defendant’s filing. On December 17, 2020, the

22

court moved the initial scheduling conference and ordered plaintiff to show cause why sanctions

23

should not be imposed for his failure to comply with the court’s order. ECF No. 18. Plaintiff has

24

not responded to the court’s order to show cause and the time to do so has now passed.

25

To manage its docket effectively, the court imposes deadlines on litigants and requires

26

litigants to meet those deadlines. The court may dismiss a case for plaintiff’s failure to prosecute

27

or failure to comply with a court order. See Fed. R. Civ. P. 41(b); Hells Canyon Pres. Council v.

28
1

1

U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005). Involuntary dismissal is a harsh penalty, but

2

a district court has a duty to administer justice expeditiously and avoid needless burden for the

3

parties. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Fed. R. Civ. P. 1.

4

In considering whether to dismiss the case for failure to prosecute, a court ordinarily

5

considers five factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the

6

court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy

7

favoring disposition of cases on their merits and (5) the availability of less drastic sanctions.”

8

Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779

9

F.2d 1421, 1423 (9th Cir.1986)). These heuristic factors merely guide the court’s inquiry; they

10

are not conditions precedent for dismissal. See In re Phenylpropanolamine (PPA) Products

11

Liability Litig., 460 F.3d 1217, 1226 (9th Cir. 2006).

12

“The public’s interest in expeditious resolution of litigation always favors dismissal.”

13

Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting Yourish v. California

14

Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this factor weighs in favor of

15

dismissal.

16

Turning to the risk of prejudice, pendency of a lawsuit, on its own, is not sufficiently

17

prejudicial to warrant dismissal. Id. (citing Yourish, 191 F.3d at 991). However, delay inherently

18

increases the risk that witnesses’ memories will fade and evidence will become stale, id. at 643,

19

and it is plaintiff’s failure to prosecute this case that is causing delay. Therefore, the third factor

20

weighs in favor of dismissal.

21

As for the availability of lesser sanctions, at this stage in the proceedings there is little

22

available to the court that would constitute a satisfactory lesser sanction while protecting the court

23

from further unnecessary expenditure of its scarce resources. Monetary sanctions are of little use,

24

considering plaintiff’s in forma pauperis status, and the preclusion of evidence or witnesses is not

25

available. While dismissal is a harsh sanction, no lesser sanction is available.

26
27

Finally, because public policy favors disposition on the merits, this factor weighs against
dismissal. Id.

28
2

After weighing the factors, including the court’s need to manage its docket, the court finds

1
2

that dismissal is appropriate. The court will recommend dismissal without prejudice.

3

Findings and Recommendations

4

Accordingly, I recommend that the case be dismissed without prejudice for plaintiff’s

5

failures to prosecute and to comply with court orders.

6

I submit these findings and recommendations to the U.S. district judge presiding over the

7

case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the service of

8

the findings and recommendations, the parties may file written objections to the findings and

9

recommendations with the court and serve a copy on all parties. The document containing the

10

objections must be captioned “Objections to Magistrate Judge’s Findings and

11

Recommendations.” The presiding district judge will then review the findings and

12

recommendations under 28 U.S.C. § 636(b)(1)(C).

13
14

IT IS SO ORDERED.

15
Dated:
16
17

January 13, 2021
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25
26
27
28
3