(PS) Williams v. Chime Solutions, Inc ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TYWON WILLIAMS, No. 2:20–cv–2299–KJM–KJN PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO PROSECUTE 13 v. (ECF No. 4) 14 CHIME SOLUTIONS, INC., et al., 15 Defendants. 16 17 Plaintiff, proceeding pro se, filed a complaint against several defendants, alleging 18 violation of various federal statutes for seemingly separate harms; plaintiff also requested leave to 19 proceed in forma pauperis. (See ECF Nos. 1, 2.) The court granted plaintiff’s IFP request and 20 dismissed the complaint under Rule 8(a) for failure to state a discernable claim for relief, and 21 Rule 20(a) for joining multiple defendants in the same suit without showing a connection between 22 the claims or defendants. (ECF No. 3.) Plaintiff was given 28 days to amend the complaint and 23 was warned that failure to do so by the required deadline could result in sanctions, including 24 “dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure 41(b).” (Id. 25 at 5.) When that deadline passed with no filings from plaintiff, on February 17, 2021, the court 26 issued an order to show cause why this action should not be dismissed with prejudice under 27 Rule 41(b) for failure to prosecute this case, and failure to comply with the court’s prior order. 28 (ECF No. 4.) Plaintiff was given another 14 days to show cause and was warned—in even 1 stricter terms—that failure to comply “will result in a recommendation that this action be 2 dismissed with prejudice” under Rule 41(b). (Id. at 2.) More than 14 days have passed without a 3 response from plaintiff. Accordingly, the undersigned recommends dismissing this case with 4 prejudice under Rule 41(b). 5 A district court may impose sanctions, including involuntary dismissal of a plaintiff’s case 6 pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her 7 case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s 8 local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court 9 “may act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation 10 Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (approving sua sponte dismissals 11 under Rule 41(b)); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to 12 follow a district court’s local rules is a proper ground for dismissal.”); Ferdik v. Bonzelet, 963 13 F.2d 1258, 1260 (9th Cir. 1992), as amended (May 22, 1992) (“Pursuant to Federal Rule of Civil 14 Procedure 41(b), the district court may dismiss an action for failure to comply with any order of 15 the court.”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per 16 curiam) (stating that district courts have inherent power to control their dockets and may impose 17 sanctions including dismissal or default). This court’s Local Rules are in accord. See E.D. Cal. 18 Local Rule 110 (“Failure of counsel or of a party to comply with these Rules or with any order of 19 the Court may be grounds for imposition by the Court of any and all sanctions authorized by 20 statute or Rule or within the inherent power of the Court.”); E.D. Cal. Local Rule 183(a) 21 (providing that a pro se party’s failure to comply with the Federal Rules of Civil Procedure, the 22 court’s Local Rules, and other applicable law may support, among other things, dismissal of that 23 party’s action). 24 A court must weigh five factors in determining whether to dismiss a case for failure to 25 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 26 /// 27 /// 28 /// 1 rules. See Ferdik, 963 F.2d at 1260. These are: 2 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 3 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 4 (5) the availability of less drastic alternatives. 5 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 6 Here, the first two factors weigh in favor of dismissal, because this case has already been 7 delayed by plaintiff’s failure to take the steps necessary to move this case forward. The third 8 factor also favors dismissal, because, at a minimum, defendants have been deprived of an 9 opportunity to be promptly notified of the lawsuit and prepare their defense. With the passage of 10 time, memories fade and evidence becomes stale. The fifth factor also favors dismissal because 11 the court has already attempted less drastic alternatives. Specifically, after granting plaintiff leave 12 to proceed without paying the filing fee, the court informed plaintiff of the complaint’s 13 deficiencies and granted leave to amend. However, plaintiff has been incommunicado since filing 14 the complaint, leaving the court with little alternative but to recommend dismissal. Given 15 plaintiff’s request to proceed IFP, it is unlikely that monetary sanctions would be effective. 16 As to the fourth factor, the public policy favoring disposition of cases on their merits, that 17 factor is outweighed by the other Ferdik factors. Indeed, it is plaintiff’s own failure to prosecute 18 the case and comply with the rules that precludes a resolution on the merits. Therefore, after 19 carefully evaluating the Ferdik factors, the court concludes that dismissal is appropriate. 20 Accordingly, IT IS HEREBY RECOMMENDED that: 21 1. Plaintiff’s claims be DISMISSED with prejudice pursuant to Federal Rule of Civil 22 Procedure 41(b); and 23 2. The Clerk of Court be directed to close this case. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 26 days after being served with these findings and recommendations, any party may file written 27 objections with the court and serve a copy on all parties. Such a document should be captioned 28 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 1 | shall be served on all parties and filed with the court within fourteen (14) days after service of the 2 | objections. The parties are advised that failure to file objections within the specified time may 3 | waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 4 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 5 | Dated: March 10, 2021 Fens Arn 7 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 8 9 AW, will.2299 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28