Dawson v. California Dept of Park & Recreation Officer Nathan Mills

Filing 32

ORDER ADOPTING REPORT AND RECOMMENDATION. After conducting a de novo review of the R & R's reasoning, Court concludes that Judge Schopler's reasoning is sound. Court overrules Plaintiff's 30 Objection to Report and Recommendation, approves and adopts 29 Report and Recommendation in its entirety, and dismisses without prejudice Plaintiff's action. Signed by Judge Cynthia Bashant on 2/12/2018. (jah)

1
2
3
4
5
6
7
8
9
10

UNITED STATES DISTRICT COURT

11

SOUTHERN DISTRICT OF CALIFORNIA

12
13

HELON DAWSON,
Plaintiff,

14

ORDER:

v.

15
16

Case No. 16-cv-02925-BAS-AGS

(1) OVERRULING PLAINTIFF’S
OBJECTIONS (ECF No. 30);

NATHAN MILLS,
Defendant.

17

(2) ADOPTING REPORT AND
RECOMMENDATION (ECF No. 29);
AND

18
19
20

(3) DISMISSING WITHOUT
PREJUDICE PLAINTIFF’S ACTION

21
22
23

I.

BACKGROUND

24

Plaintiff Helon Dawson has not participated in this lawsuit for almost nine months.

25

In fact, Plaintiff’s counsel states that he has not spoken to his client since the May 12, 2017

26

Early Neutral Evaluation. (See ECF No. 24 at 2; ECF No. 28, at 1 (representing that counsel

27

“still has been unable to contact his client by any means”).) Last fall, Magistrate Judge

28

Andrew G. Schopler granted multiple discovery deadline extensions after Plaintiff failed
1
16cv2925

1

to produce discovery and her counsel represented he was unable to locate his client, even

2

after hiring a private investigator. (See ECF No. 25.) Finally, Judge Schopler issued an

3

order to show cause as to why this case should be not dismissed for failure to prosecute.

4

(See ECF No. 27.) Plaintiff’s counsel responded, arguing that a stay was “more

5

proportional and appropriate,” even though he was still unable to contact his client “by any

6

means.” (ECF No. 28.)

7

On January 8, 2018, Magistrate Judge Schopler issued a Report and

8

Recommendation (“R&R”), recommending that this case be dismissed for failure to

9

prosecute. (ECF No. 29.) Plaintiff’s counsel filed objections, stating that a stay would

10

accomplish much of the same purpose. (See ECF No. 30.) For the reasons discuss below,

11

this Court agrees with the magistrate judge and adopts the R&R in its entirety.

12
13

II.

LEGAL STANDARD

14

A.

15

“District courts have the inherent power to control their dockets and, ‘[i]n the

16

exercise of that power they may impose sanctions including, where appropriate, . . .

17

dismissal of a case.’” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (quoting

18

Thompson v. Hous. Auth. of L.A., 782 F.2d 829, 831 (9th Cir. 1986)); accord Link v.

19

Wabash R.R., 370 U.S. 626, 630–31 (1962) (holding courts are vested with an inherent

20

power “to manage their own affairs so as to achieve the orderly and expeditious disposition

21

of cases”). This inherent power exists independently of a district court’s authority to

22

dismiss an action under Federal Rule of Civil Procedure 41(b). Link, 370 U.S. at 630-32.

23

“Despite this authority, dismissal is a harsh penalty and, therefore, it should only be

24

imposed in extreme circumstances.” Ferdik, 963 F.2d at 1260.

Dismissal for Failure to Prosecute

25

The circumstances in which a court may exercise its inherent power to dismiss an

26

action include where a plaintiff has failed to prosecute the case, failed to comply with a

27

court order, or engaged in judge shopping. Link, 370 U.S. at 630; Yourish v. Cal. Amplifier,

28

191 F.3d 983, 989–-90 (9th Cir. 1999); Hernandez v. City of El Monte, 138 F.3d 393, 399
2
16cv2925

1

(9th Cir. 1998). In determining whether to exercise this power, “the district court must

2

weigh five factors including: (1) the public’s interest in expeditious resolution of litigation;

3

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

4

the public policy favoring disposition of cases on their merits; and (5) the availability of

5

less drastic alternatives.” Ferdik, 963 F.2d at 1260-61 (quoting Henderson, 779 F.2d at

6

1424, and Thompson, 782 F.2d 829 at 831) (internal quotation marks omitted). Although

7

it is preferred, the district court is not required to “make explicit findings in order to show

8

that it has considered these factors.” Ferdik, 963 F.3d at 1261.

9
10

B.

11

The Court reviews de novo those portions of a magistrate judge’s report and

12

recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may

13

“accept, reject, or modify, in whole or in part, the findings or recommendations made by

14

the magistrate judge.” Id. “The statute [28 U.S.C. § 636(b)(1)(c)] makes it clear,” however,

15

“that the district judge must review the magistrate judge’s findings and recommendations

16

de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d

17

1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see also Schmidt v. Johnstone,

18

263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that where no objections were

19

filed, the district court had no obligation to review the magistrate judge’s report). “Neither

20

the Constitution nor the statute requires a district judge to review, de novo, findings and

21

recommendations that the parties themselves accept as correct.” Reyna-Tapia, 328 F.3d at

22

1121.

Report and Recommendation

23

Objections must be written and specific. See, e.g., Fed. R. Civ. Pr. 72(b)(2) (“[A]

24

party may serve and file specific written objections to the proposed findings and

25

recommendations” of the magistrate judge).“Numerous courts have held that a general

26

objection to the entirety of a Magistrate Judge’s [report and recommendation] has the same

27

effect as a failure to object.” Alcantara v. McEwen, No. 12-cv-401-IEG, 2013 WL

28

4517861, at *1 (S.D. Cal. Aug. 15, 2013) (citing cases). In the absence of specific
3
16cv2925

1

objection, the clear weight of authority indicates that the court need only satisfy itself that

2

there is no “clear error” on the face of the record before adopting the magistrate judge’s

3

recommendation. See, e.g., Fed. R. Civ. P. 72(b) Advisory Comm. Notes (1983) (citing

4

Campbell v. United States Dist. Court, 501 F.3d 196, 206 (9th Cir. 1974)).

5
6

III.

ANALYSIS

7

Plaintiff’s counsel does not object to Magistrate Judge Schopler’s reasoning in the

8

R&R, but instead states that a stay is more appropriate than a dismissal. Plaintiff’s counsel

9

argues that the defendant will not be prejudiced by a stay and that a stay will allow Plaintiff

10

to resume her case more easily, once she is located. (ECF No. 30 at 1.)

11

The procedural history summarized above demonstrates that Plaintiff has failed to

12

advance this case and is unlikely to do so any time soon. Plaintiff’s counsel has represented

13

that he has tried to contact Plaintiff on multiple occasions over the last few months, but he

14

has failed to speak to or locate his client, even with the help of a private investigator. The

15

Court has no reason to believe that Plaintiff will re-engage with this case anytime soon—

16

if at all—making a stay futile. The Court is also not amenable to making it easier for

17

Plaintiff to re-engage in this case once she is located. The Court has already attempted to

18

aid Plaintiff in prosecuting her claim to no avail. She has repeatedly failed to comply with

19

the Court’s previous orders, despite receiving multiple extensions, and has provided no

20

reason for her absence. Moreover, the magistrate judge warned Plaintiff and Plaintiff’s

21

counsel that if Plaintiff did not respond to the defendant’s discovery requests by December

22

1, 2017, which she was compelled to do, that the Court would issue an order to show cause

23

regarding dismissal for lack of prosecution. No discovery responses were filed, nor did

24

Plaintiff’s counsel locate his client. (See ECF Nos. 25, 26.) Lastly, the Court finds that a

25

stay could risk prejudice to the defendant as “[t]he law presumes injury from unreasonable

26

delay.” In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994) (citation omitted).

27
28
4
16cv2925

1

IV.

CONCLUSION & ORDER

2

After conducting a de novo review of the R&R’s reasoning, the Court concludes that

3

Judge Schopler’s reasoning is sound. Accordingly, the Court OVERRULES Plaintiff’s

4

objections (ECF No. 30), APPROVES AND ADOPTS the R&R in its entirety (ECF No.

5

29), and DISMISSES WITHOUT PREJUDICE Plaintiff’s action.

6

IT IS SO ORDERED.

7
8

DATED: February 12, 2018

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
16cv2925