(PS) Whitsitt v. Select Staffing ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM J. WHITSITT, No. 2:18-cv-1866 TLN DB PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 SELECT STAFFING; COSTCO WHOLESALE MEATS, 15 16 Defendants. 17 18 Plaintiff William Whitsitt is proceeding in this action pro se and in forma pauperis. This 19 matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 20 636(b)(1). On October 30, 2019, the undersigned ordered plaintiff to supply the U.S. Marshall 21 with the documents necessary to serve defendants with process and to file a statement confirming 22 submission of the necessary documents within twenty-one days. (ECF No. 10 at 2.) Plaintiff was 23 cautioned that failure to timely comply could result in a recommendation that this action be 24 dismissed. (Id. at 4.) 25 Plaintiff was also issued a letter that same day advising plaintiff that Rule 4 of the Federal 26 Rules of Civil Procedures provides that if a defendant is not served within 90 days, the court must 27 dismiss the defendant without prejudice. (ECF No. 11.) Plaintiff, however, did not respond to 28 the October 30, 2019 order in any manner and no defendant has appeared in this action. 1 Accordingly, on March 26, 2020, the undersigned issued an order to show cause as to why 2 this action should not be dismissed for lack of prosecution. (ECF No. 13.) Plaintiff was ordered 3 to show cause in writing within twenty-eight days. The twenty-eight-day period has expired and 4 plaintiff has not responded in any manner. 5 ANALYSIS 6 The factors to be weighed in determining whether to dismiss a case for lack of prosecution 7 are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need 8 to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring 9 disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of 10 El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 11 1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that 12 should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d 13 at 1260. 14 Failure of a party to comply with the any order of the court “may be grounds for 15 imposition by the Court of any and all sanctions authorized by statute or Rule or within the 16 inherent power of the Court.” Local Rule 110. Any individual representing himself or herself 17 without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local 18 Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable 19 rules and law may be grounds for dismissal or any other sanction appropriate under the Local 20 Rules. Id. 21 Here, plaintiff failed to comply with multiple orders of this court. Plaintiff was given 22 multiple opportunities to demonstrate an intent to prosecute this action and has failed to do so. In 23 this regard, plaintiff’s lack of prosecution of this case renders the imposition of monetary 24 sanctions futile. Moreover, the public interest in expeditious resolution of litigation, the court’s 25 need to manage its docket, and the risk of prejudice to the defendant all support the imposition of 26 the sanction of dismissal. Only the public policy favoring disposition on the merits counsels 27 against dismissal. However, plaintiff’s failure to prosecute the action in any way makes 28 disposition on the merits an impossibility. The undersigned will therefore recommend that this wOAoOe 2.40 UV VLOVUY TRING MVUVUETPCTID Sor POMOC Vee VT 1 | action be dismissed due to plaintiff's failure to prosecute as well as plaintiff’s failure to comply 2 | with the Court’s orders. See Fed. R. Civ. P. 41(b). 3 Accordingly, IT IS HEREBY RECOMMENDED that: 4 1. Plaintiff's June 19, 2019 second amended complaint (ECF No. 9) be dismissed without 5 || prejudice; and 6 2. This action be closed. 7 These findings and recommendations will be submitted to the United States District Judge 8 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days 9 | after being served with these findings and recommendations, plaintiff may file written objections 10 | with the court. A document containing objections should be titled “Objections to Magistrate 11 || Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 12 || the specified time may, under certain circumstances, waive the right to appeal the District Court’s 13 | order. See Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 14 | Dated: May 22, 2020 15 16 17 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 18 19 20 DLB:6 9] DB/orders/orders.pro se/whitsitt 1866.dlop.f&rs 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28