(PC) Hatton v. Triplett ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC DEWAYNE HATTON, No. 2:21-cv-01206 TLN DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 DUSTIN TRIPLETT, 15 Defendants. 16 17 A recent court order was served to plaintiff by mail and returned as undeliverable. More 18 than 63 days have passed, and plaintiff has not updated his address or otherwise communicated 19 with the court. 20 It is plaintiff’s responsibility to keep the court apprised of his current address at all times 21 and plaintiff was previously advised of this requirement. (See ECF No 3-1 at 2.) Pursuant to 22 Local Rule 182(f), service of documents at plaintiff’s record address is fully effective. Pursuant to 23 Local Rule 183(b), “[i]f mail directed to a plaintiff in propria persona by the Clerk is returned by 24 the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties within 25 sixty-three (63) days thereafter of a current address, the Court may dismiss the action without 26 prejudice for failure to prosecute.” 27 The court weighs five factors in determining whether to dismiss a case for failure to 28 prosecute: 1 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 2 defendants; (4) the public policy favoring disposition of cases on 3 their merits; and (5) the availability of less drastic alternatives. 4 | Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992), as amended (May 22, 1992). 5 Here, the first three factors weigh in favor of dismissal, because this case will be delayed 6 | by plaintiff's failure to communicate with the court and because with the passage of time 7 || witnesses’ memories fade and evidence becomes stale. The fifth factor also favors dismissal g | because there are no available less drastic alternatives. See Carey v. King, 856 F.2d 1439, 1441 9 | (9th Cir. 1988). Although the public policy favoring disposition of cases on their merits does not 10 | favor dismissal, that factor is outweighed by the other Ferdik factors. See Ghazali v. Moran, 46 11 | F.3d 52, 53 (th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a 12 | proper ground for dismissal.”). 13 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 14 1. This action be dismissed without prejudice pursuant to Federal Rule of Civil 15 Procedure 41(b); and 16 2. The Clerk of Court be directed 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 28 U.S.C. § 636(b)(). Within fourteen (14) 19 | days after being served with these findings and recommendations, any party may file written 20 | objections with the court and serve a copy on all parties. Such a document should be captioned 21 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 22 | shall be served on all parties and filed with the court within fourteen (14) days after service of the 23 || objections. The parties are advised that failure to file objections within the specified time may 24 | waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 25 || 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 26 || Dated: June 6, 2023 hatt1206.nca.fr 28 ORAH BARNES UNITED STATES MAGISTRATE JUDGE