(PS) Garcia v. Procter and Gamble Company ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRIAN GARCIA, No. 2:17-cv-02591-MCE-JDP 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS THAT THE COURT DISMISS THIS CASE 14 PROCTER AND GAMBLE COMPANY, FOR PLAINTIFF’S FAILURES TO PROSECUTE AND TO COMPLY WITH 15 Defendant. COURT ORDERS 16 OBJECTIONS DUE WITHIN 14 DAYS 17 18 On December 1, 2020, the court issued an order resetting an initial scheduling conference 19 for December 17, 2020 and directing the parties to file a joint status report seven days prior. ECF 20 No. 15. Defendant timely filed a status report. ECF No. 17. Plaintiff, however, failed to 21 separately file his own status report or join in defendant’s filing. On December 17, 2020, the 22 court moved the initial scheduling conference and ordered plaintiff to show cause why sanctions 23 should not be imposed for his failure to comply with the court’s order. ECF No. 18. Plaintiff has 24 not responded to the court’s order to show cause and the time to do so has now passed. 25 To manage its docket effectively, the court imposes deadlines on litigants and requires 26 litigants to meet those deadlines. The court may dismiss a case for plaintiff’s failure to prosecute 27 or failure to comply with a court order. See Fed. R. Civ. P. 41(b); Hells Canyon Pres. Council v. 28 1 U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005). Involuntary dismissal is a harsh penalty, but 2 a district court has a duty to administer justice expeditiously and avoid needless burden for the 3 parties. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Fed. R. Civ. P. 1. 4 In considering whether to dismiss the case for failure to prosecute, a court ordinarily 5 considers five factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 6 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 7 favoring disposition of cases on their merits and (5) the availability of less drastic sanctions.” 8 Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 9 F.2d 1421, 1423 (9th Cir.1986)). These heuristic factors merely guide the court’s inquiry; they 10 are not conditions precedent for dismissal. See In re Phenylpropanolamine (PPA) Products 11 Liability Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). 12 “The public’s interest in expeditious resolution of litigation always favors dismissal.” 13 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting Yourish v. California 14 Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this factor weighs in favor of 15 dismissal. 16 Turning to the risk of prejudice, pendency of a lawsuit, on its own, is not sufficiently 17 prejudicial to warrant dismissal. Id. (citing Yourish, 191 F.3d at 991). However, delay inherently 18 increases the risk that witnesses’ memories will fade and evidence will become stale, id. at 643, 19 and it is plaintiff’s failure to prosecute this case that is causing delay. Therefore, the third factor 20 weighs in favor of dismissal. 21 As for the availability of lesser sanctions, at this stage in the proceedings there is little 22 available to the court that would constitute a satisfactory lesser sanction while protecting the court 23 from further unnecessary expenditure of its scarce resources. Monetary sanctions are of little use, 24 considering plaintiff’s in forma pauperis status, and the preclusion of evidence or witnesses is not 25 available. While dismissal is a harsh sanction, no lesser sanction is available. 26 Finally, because public policy favors disposition on the merits, this factor weighs against 27 dismissal. Id. 28 1 After weighing the factors, including the court’s need to manage its docket, the court finds 2 | that dismissal is appropriate. The court will recommend dismissal without prejudice. 3 Findings and Recommendations 4 Accordingly, I recommend that the case be dismissed without prejudice for plaintiff’ □ 5 | failures to prosecute and to comply with court orders. 6 I submit these findings and recommendations to the U.S. district judge presiding over the 7 | case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the service of 8 | the findings and recommendations, the parties may file written objections to the findings and 9 | recommendations with the court and serve a copy on all parties. The document containing the 10 || objections must be captioned “Objections to Magistrate Judge’s Findings and 11 | Recommendations.” The presiding district judge will then review the findings and 12 | recommendations under 28 U.S.C. § 636(b)(1)(C). 13 4 IT IS SO ORDERED. 15 ( 1 Ow — Dated: _ January 13, 2021 Q_—— 16 JEREMY D. PETERSON 7 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28