Ali v. TransUnion Corp. ( 2019 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 HUSSEIN ALI, Case No. 1:19-cv-00450-AWI-SKO 13 Plaintiff, FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO 14 v. PROSECUTE AND OBEY THE COURT’S ORDERS 15 EXPERIAN INFORMATION SOLUTIONS, INC., (Docs. 11, 15) 16 Defendant. OBJECTIONS DUE: 14 DAYS 17 _____________________________________/ 18 19 On March 5, 2019, Plaintiff Hussein Ali, proceeding pro se, filed a complaint against 20 Defendants Trans Union LLC1 and Experian Information Solutions, Inc., in Fresno County 21 Superior Court. (Doc. 1-1.) On April 5, 2019, Defendant Experian removed the case to this court. 22 (Doc. 1.) 23 The Court set a Mandatory Scheduling Conference for June 27, 2019, and ordered the parties 24 25 to file a Joint Scheduling Report by June 20, 2019. (Doc. 2.) 26 27 28 1 2 the Court continued the scheduling conference to August 8, 2019, and directed the parties to file an 3 updated joint scheduling report by August 1, 2019. (Id.) The Court also warned Plaintiff: “The 4 Court ADMONISHES Plaintiff that if he fails to appear without good cause at the scheduling 5 conference on August 8, 2019, the Court will recommend to the assigned district judge that 6 Plaintiff’s complaint be dismissed for failure to prosecute and failure to comply with a court 7 order.” (Id.) (emphasis in original). On August 8, 2019, Plaintiff failed to appear at the Mandatory 8 Scheduling Conference. (See Doc. 14.) 9 10 Due to Plaintiff’s failure to appear at the scheduling conference, the Court entered an Order 11 to Show Cause (“OSC”) directing Plaintiff to show cause by August 22, 2019, why the Court should 12 not recommend that the case be dismissed for failure to prosecute and failure to comply with the 13 Court’s orders. (Doc. 15 at 3.) Plaintiff failed to respond to the OSC by August 22, 2019 and has 14 not filed a response to date. 15 16 DISCUSSION 17 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 18 or with any order of the Court may be grounds for the imposition by the Court of any and all 19 sanctions . . . within the inherent power of the Court.” E.D. Cal. L.R. 110. District courts have the 20 inherent power to control their dockets and “[i]n the exercise of that power they may impose 21 sanctions, including, where appropriate . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 22 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to 23 prosecute an action, failure to obey a court order, or failure to comply with local rules. See, e.g., 24 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); 25 Carey v. King, 856 F.2d 1439, 1440–41 (9th Cir. 1988) (dismissal for failure to comply with local 26 rule requiring pro se plaintiff to keep court apprised of address); Malone v. U.S. Postal Service, 27 833 F.2d 128, 130–31 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson 28 v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and failure to 1 comply with local rules); Lopez v. Chase Home Fin., No. CVF09-0449 LJOGSA, 2009 WL 2 1098760, at *1 (E.D. Cal. Apr. 20, 2009) (dismissal of certain defendants for failure to comply 3 with court). 4 In determining whether to dismiss an action for failure to obey a court order or failure to 5 comply with the Local Rules, the court must consider several factors, including: “(1) the public’s 6 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk 7 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; 8 and (5) the availability of less drastic sanctions.” Henderson, 779 F.2d at 1423–24; see also Ferdik, 9 963 F.2d at 1260–61; Thompson, 782 F.2d at 831. “The public’s interest in expeditious resolution 10 of litigation always favors dismissal.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) 11 (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). 12 Here, the Court finds that the public’s interest in expeditiously resolving this litigation and 13 the Court’s interest in managing the docket weigh in favor of dismissal, as it appears Plaintiff lacks 14 interest in pursuing this case. The third factor, risk of prejudice to Defendant, also weighs in favor 15 of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in 16 prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth 17 factor—public policy favoring disposition of cases on their merits—is greatly outweighed by the 18 factors in favor of dismissal discussed herein. Finally, a court’s warning to a party that the failure 19 to obey the court’s order will result in dismissal satisfies the “consideration of alternatives” 20 requirement. Malone, 833 F.2d at 132–33; Henderson, 779 F.2d at 1424. 21 The June 27, 2019 Order expressly warned Plaintiff that his failure to appear at the August 22 8, 2019 Mandatory Scheduling Conference would result in the undersigned recommending 23 dismissal of this case. (Doc. 11.) The August 8, 2019 OSC expressly ordered Plaintiff to file a 24 statement showing cause why the Court should not recommend to the assigned district judge that 25 this case be dismissed. (Doc. 15 at 3.) Thus, Plaintiff had adequate warning that sanctions, up to 26 and including dismissal of the case, would result from his noncompliance with the OSC. Plaintiff 27 has demonstrated a general lack of concern for court orders throughout the case and the Court has 28 1 warned Plaintiff regarding his failure to prosecute this case and follow the Court’s Orders. (See 2 Docs. 11, 15.) 3 In light of the foregoing, and pursuant to Local Rule 110 and the Court’s inherent sanction 4 authority, the undersigned RECOMMENDS that this case be dismissed with prejudice. 5 CONCLUSION AND RECOMMENDATION 6 For the reasons set forth above, IT IS HEREBY RECOMMENDED that this action be 7 DISMISSED WITH PREJUDICE based on Plaintiff’s failure to obey the Court’s Orders of June 8 27, 2019, (Doc. 11), and August 8, 2019, (Doc. 15), and Plaintiff’s failure to prosecute the case. 9 The Court further DIRECTS the Clerk to send a copy of this order to Plaintiff at his address 10 listed on the docket for this matter. 11 These findings and recommendations are submitted to the district judge assigned to this 12 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen (14) 13 days of service of this recommendation, any party may file written objections to these findings and 14 recommendations with the Court and serve a copy on all parties. Such a document should be 15 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge 16 will review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 17 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 18 waive the right to appeal the district judge’s order. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 19 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 21 IT IS SO ORDERED. 22 Sheila K. Oberto Dated: September 9, 2019 /s/ . 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28