(PC) Garcia v. Baniga ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE GARCIA, 1:19-cv-01258-AWI-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE 13 v. DISMISSED WITHOUT PREJUDICE FOR FAILURE TO OBEY COURT ORDER 14 U. BANIGA, M.D., et al., (ECF No. 24.) 15 Defendants. OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS 16 17 18 On August 17, 2020, the Court issued an order requiring Plaintiff to file a response to 19 defendant Rodriguez’s motion to compel filed on July 2, 2020, within thirty days. (ECF No. 24.) 20 The thirty-day deadline has now expired and Plaintiff has neither filed a response to the motion 21 to compel or filed any other response to the Court’s order.1 22 In determining whether to dismiss this action for failure to comply with the directives set 23 forth in its order, “the Court must weigh the following factors: (1) the public’s interest in 24 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 25 26 1 The United States Postal Service returned the Order on August 27, 2020, as 27 “Undeliverable, Paroled.” (Court Record.) However, Plaintiff has not notified the Court of any change in his address. Absent such notice, service at a party’s prior address is fully effective. Local Rule 182(f). 28 1 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 2 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 3 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 4 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 5 id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the 6 action has been pending since September 10, 2019. Plaintiff’s failure to respond to the Court’s 7 order may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court 8 cannot continue to expend its scarce resources assisting a litigant who will not participate in 9 discovery for his lawsuit. Thus, both the first and second factors weigh in favor of dismissal. 10 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 11 and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently 12 increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it 13 is Plaintiff's failure to participate in discovery that is causing delay. Therefore, the third factor 14 weighs in favor of dismissal. 15 As for the availability of lesser sanctions, at this stage in the proceedings there is little 16 available to the Court which would constitute a satisfactory lesser sanction while protecting the 17 Court from further unnecessary expenditure of its scarce resources. However, inasmuch as the 18 dismissal being considered in this case is without prejudice, the Court is stopping short of issuing 19 the harshest possible sanction of dismissal with prejudice. 20 Finally, because public policy favors disposition on the merits, this factor will always 21 weigh against dismissal. Id. at 643. 22 Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed, 23 without prejudice, based on Plaintiff’s failure to obey the Court’s order issued on August 17, 24 2020. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 27 (14) days after being served with these findings and recommendations, any party may file written 28 objections with the Court. Such a document should be captioned “Objections to Magistrate 1 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 2 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 3 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 4 1991)). 5 IT IS SO ORDERED. 6 7 Dated: September 25, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28