(PS) Martinez v. FP Store, Inc. ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANGELICA MARTINEZ, Case No. 1:19-cv-00487-LJO-EPG 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 RECOMMENDING THAT PLAINTIFF’S v. CLAIMS BE DISMISSED FOR FAILURE TO 14 STATE A CLAIM, FAILURE TO PROSECUTE, FP STORE, INC. AND FAILURE TO COMPLY WITH A COURT 15 Defendants. ORDER 16 (ECF NO. 4) 17 18 19 Plaintiff Angelica Martinez (“Plaintiff”) proceeds pro se and in forma pauperis in this 20 action against Defendant FP Store, Inc. (“Defendant”), alleging a cause of action under the Fair 21 Labor Standards Act of 1938, 29 U.S.C. § 216(b) (“FLSA”). 22 On September 24, 2019, the Court screened Plaintiff’s Complaint pursuant to 28 U.S.C. § 23 1915(e)(2) and found that it failed to state any cognizable claims. (ECF No. 4.) The Court gave 24 Plaintiff options as to how to proceed: (1) file an amended complaint; or (2) notify the Court that 25 she wishes to stand on her complaint, subject to the Court issuing findings and recommendations 26 to the district judge consistent with the screening order. The Court also warned Plaintiff that if she 27 failed to take any action in response to the screening order, the Court would issue findings and 28 recommendations to the assigned district judge recommending that Plaintiff’s case be dismissed 1 for failure to state a claim, failure to prosecute, and failure to comply with a Court order. 2 More than thirty days have elapsed since the Court entered its screening order, and Plaintiff 3 has failed to file an amended complaint or to notify that Court that she wishes to stand on her 4 complaint. 5 Accordingly, for the reasons set forth in the screening order (ECF No. 4.), the Court will 6 recommend that Plaintiff’s case be dismissed for failure to state a claim. 7 Moreover, the Court will recommend that Plaintiff’s case be dismissed without prejudice 8 for failure to prosecute and for failure to comply with a court order. 9 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 10 comply with a court order, the Court must weigh the following factors: (1) the public’s interest in 11 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 12 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 13 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 14 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 15 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 16 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 17 this factor weighs in favor of dismissal. 18 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 19 determine whether the delay in a particular case interferes with docket management and the 20 public interest…. It is incumbent upon the Court to manage its docket without being subject to 21 routine noncompliance of litigants....” Pagtalunan, 291 at 639. As described above, Plaintiff has 22 failed to respond to a court order and has generally failed to litigate. This failure is delaying this 23 case and interfering with docket management. Therefore, the second factor weighs in favor of 24 dismissal. 25 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 26 and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, “delay 27 inherently increases the risk that witnesses’ memories will fade and evidence will become stale,” 28 1 | id. at 643, and it is Plaintiff's failure to respond to a court order that is causing delay. Therefore, 2 | the third factor weighs in favor of dismissal. 3 As for the availability of lesser sanctions, at this stage in the proceedings there is little 4 | available to the Court which would constitute a satisfactory lesser sanction while protecting the 5 | Court from further unnecessary expenditure of its scarce resources. Considering Plaintiff's in 6 || forma pauperis status, monetary sanctions are of little use, and given the stage of these 7 | proceedings, the preclusion of evidence or witnesses is not available. Additionally, because the 8 | dismissal being considered in this case is without prejudice, the Court is stopping short of using 9 | the harshest possible sanction of dismissal with prejudice. 10 Finally, because public policy favors disposition on the merits, this factor weighs against 11 | dismissal. Id. 12 After weighing the factors, the Court finds that dismissal without prejudice is appropriate. 13 Accordingly, IT Is HEREBY RECOMMENDED that: 14 1. Plaintiff's case be dismissed without prejudice for failure to state a claim, failure to 15 prosecute, and failure to comply with a Court order; and 16 2. The Clerk of Court be instructed to close this case. 17 These findings and recommendations are submitted to the United States district judge 18 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-one 19 | (21) days after being served with these findings and recommendations, Plaintiff may file written 20 | objections with the Court. The document should be captioned “Objections to Magistrate judge’s 21 | Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 22 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 23 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 45 IT IS SO ORDERED. 26 Dated: _ December 9, 2019 [sf ey 07 UNITED STATES MAGISTRATE JUDGE 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