(PC) Turner v. Guibord ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY DEWAYNE LEE TURNER, No. 2:19-cv-0416 TLN DB P 12 Plaintiff, 13 v. ORDER AND 14 SACRAMENTO CITY FIRE DEPT., et FINDINGS & RECOMMENDATIONS al., 15 Defendants. 16 17 18 A recent court order was served on plaintiff’s address of record and returned by the postal 19 service. It appears that plaintiff has failed to comply with Local Rule 183(b), which requires that 20 a party appearing in propria persona inform the court of any address change. More than sixty- 21 three days have passed since the court order was returned by the postal service and plaintiff has 22 failed to notify the Court of a current address. 23 It is plaintiff’s responsibility to keep the court apprised of his current address at all times 24 and plaintiff was advised of this requirement. (See ECF No 3 at 2.) Plaintiff’s failure to keep the 25 court apprised of his current address prevents this case from moving forward and warrants 26 dismissal for failure to prosecute. The court weighs five factors in determining whether to dismiss 27 a case for failure to prosecute: 28 //// 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 their merits; and (5) the availability of less drastic alternatives. 3 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 8 because there are no available less drastic alternatives. See Carey v. King, 856 F.2d 1439, 1441 9 (9th Cir. 1988). Although public policy favors disposition of cases on their merits, that factor is 10 outweighed by the other Ferdik factors. See Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per 11 curiam) (“Failure to follow a district court’s local rules is a proper ground for dismissal.”). 12 In accordance with the above, IT IS HEREBY ORDERED AS FOLLOWS: 13 1. Defendants are relieved from filing a pretrial statement absent a further order of the 14 court requiring a pretrial statement. 15 2. The pretrial conference and jury trial set for 11/16/23 and 1/22/24, respectively, are 16 hereby vacated. 17 In addition, IT IS HEREBY RECOMMENDED as follows: 18 1. This action be dismissed for failure to prosecute. See Fed. R. Civ. P. 41(b). 19 2. The Clerk of the Court be directed to closet this case. 20 These findings and recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 22 after being served with these findings and recommendations, any party may file written 23 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 24 Findings and Recommendations.” Any response to the objections shall be filed and served within 25 fourteen days after service of the objections. Failure to file objections within the specified time 26 //// 27 //// 28 //// 1 | may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 2} 1991). 3 | Dated: October 13, 2023 4 5 6 ORAH BARNES DLBY UNITED STATES MAGISTRATE JUDGE 7 || turn0416.nca.fr 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28