(PS) Turner v. United Postal Services ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEO B. TURNER, No. 2:19-cv-1029-KJM-KJN PS 12 Plaintiff, ORDER AND FINDINGS & RECOMMENDATIONS 13 v. (ECF Nos. 1, 3.) 14 UNITED STATES POSTAL SERVICE, and 15 MOMENTUM CREDIT CARD CO., 16 Defendants. 17 18 On June 6, 2019, Plaintiff filed a complaint against Defendants, and moved to proceed in 19 forma pauperis.1 (ECF Nos. 1, 2.) On July 17, the Court granted Plaintiff’s IFP request, screened 20 his complaint, and determined it failed for lack of subject matter jurisdiction. (ECF No. 3.) 21 However, the Court determined that Plaintiff may have claims against Defendant Momentum 22 Credit Card, and so allowed for leave to amend. (Id.) Plaintiff was granted 28 days to file an 23 amended complaint or request voluntary dismissal, and was expressly warned that failure to 24 timely comply may result in dismissal with prejudice. (Id.) A copy of this order was mailed to 25 Plaintiff, but was returned as undeliverable. (See Docket Entry for July 30, 2019.) Plaintiff did 26 not file an amended complaint. (See Id.) Thus, the Court recommends dismissal with prejudice. 27 1 Plaintiff represents himself in this action without the assistance of counsel; thus, this case 28 proceeds before the undersigned pursuant to Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 1 Analysis 2 Eastern District Local Rule 183(a) provides, in part: 3 Any individual representing himself [] without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. 4 All obligations placed on “counsel” by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal, 5 judgment by default, or any other sanction appropriate under these Rules. 6 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the 7 same rules of procedure that govern other litigants”) (overruled on other grounds). A district 8 court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to 9 Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or 10 fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local 11 rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act 12 sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. 13 Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action 14 pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 15 or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 16 53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground 17 for dismissal.”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal 18 Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with 19 any order of the court.”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th 20 Cir. 1986) (per curiam) (stating that district courts have inherent power to control their dockets 21 and may impose sanctions including dismissal or default). 22 A court must weigh five factors in determining whether to dismiss a case for failure to 23 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 24 rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider: 25 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 26 the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. 27 28 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 1 Here, the first two factors weigh in favor of dismissal, because this case has already been 2 delayed by plaintiff’s failure to take the steps necessary to move this case forward. The third 3 factor also slightly favors dismissal, because, at a minimum, defendants have been deprived of an 4 opportunity to be promptly notified of the lawsuit and prepare their defense. With the passage of 5 time, witnesses’ memories fade and evidence becomes stale. 6 Furthermore, the fifth factor, availability of less drastic alternatives, favors dismissal, 7 because the Court has already attempted less drastic alternatives. Specifically, the Court granted 8 Plaintiff leave to amend, even though his complaint failed for lack of subject matter jurisdiction. 9 The allegations against Defendant Momentum were spurious at best, but given plaintiff’s pro se 10 status, leave was granted. However, the court’s mail was returned as undeliverable, and plaintiff 11 has not informed the court of any change of address. See L.R. 182(f) (imputing a duty on parties 12 to notify the court and parties of any change of address). Simply, plaintiff has been 13 incommunicado since filing his complaint, leaving the court with little alternative but to 14 recommend dismissal. 15 Finally, as to the fourth factor, the public policy favoring disposition of cases on their 16 merits, that factor is outweighed by the other Ferdik factors. Indeed, it is plaintiff’s own failure to 17 prosecute the case and comply with the rules that precludes a resolution on the merits. 18 Therefore, after carefully evaluating the Ferdik factors, the court concludes that dismissal 19 is appropriate. 20 Accordingly, IT IS HEREBY RECOMMENDED that: 21 1. The action be dismissed pursuant to Federal Rule of Civil Procedure 41(b); and 22 2. The Clerk of Court be directed to close this case. 23 In light of those recommendations, IT IS ALSO HEREBY ORDERED that all pleading, 24 discovery, and motion practice in this action are stayed pending resolution of the findings and 25 recommendations. With the exception of objections to the findings and recommendations and 26 any non-frivolous motions for emergency relief, the court will not entertain or respond to any 27 motions and other filings until the findings and recommendations are resolved. 28 //// 1 These findings and recommendations are submitted to the United States District Judge 2 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 3 | days after being served with these findings and recommendations, any party may file written 4 | objections with the court and serve a copy on all parties. Such a document should be captioned 5 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 6 | shall be served on all parties and filed with the court within fourteen (14) days after service of the 7 | objections. The parties are advised that failure to file objections within the specified time may 8 || waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 9 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 10 IT IS SO ORDERED AND RECOMMENDED. 11 Dated: August 14, 2019 i Fensbl A Abar 13 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 14 turn.1029 15 16 17 18 19 20 21 22 23 24 25 26 27 28