(PS) Aziz v. U.S. Postal Service ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FARZAD AZIZ, No. 2:20-cv-1200-MCE-KJN PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS ON DEFENDANTS’ MOTION TO DISMISS 13 v. (ECF No. 11.) 14 UNITED STATES POSTAL SERVICE, et al., 15 Defendant. 16 17 On June 16, 2020, plaintiff filed a complaint for damages against defendant, arising out of 18 a motor vehicle accident on June 18, 2018.1 (ECF No. 1.) On January 19, 2022, defendants filed 19 a motion to dismiss, and the hearing was ultimately set for February 22, 2022. (ECF Nos. 11, 20 14.) A copy of this minute order was mailed to plaintiff. (See Docket Entry for January 24, 21 2022.) Plaintiff did not file a response to defendants’ motion to dismiss, and the court vacated the 22 hearing.2 (See Docket Entry for February 11, 2022.) A copy of this minute order was also 23 mailed to plaintiff. (See Id.) The court now RECOMMENDS dismissal for failure to prosecute. 24 1 Plaintiff filed the complaint with the assistance of counsel of whom has since withdrawn due to 25 “an unresolvable conflict of interest.” (See ECF No. 5 at 2.) Plaintiff now proceeds without the assistance of counsel; thus, this case was referred to the undersigned pursuant to Local Rule 26 302(c)(21). See 28 U.S.C. § 636(b)(1). 27 2 The court vacated the hearing and took the matter under submission without oral argument 28 pursuant to Local Rule 230(c). 1 DISCUSSION 2 Eastern District Local Rule 183(a) provides, in part: 3 Any individual representing himself [] without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. 4 All obligations placed on “counsel” by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal, 5 judgment by default, or any other sanction appropriate under these Rules. 6 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the 7 same rules of procedure that govern other litigants”) (overruled on other grounds). A district 8 court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to 9 Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or 10 fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local 11 rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act 12 sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. 13 Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action 14 pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 15 or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 16 53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground 17 for dismissal.”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal 18 Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with 19 any order of the court.”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th 20 Cir. 1986) (per curiam) (stating that district courts have inherent power to control their dockets 21 and may impose sanctions including dismissal or default). 22 A court must weigh five factors in determining whether to dismiss a case for failure to 23 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 24 rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider: 25 (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 26 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. 27 28 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 1 Here, the first two Ferdick factors weigh in favor of dismissal, because this case has 2 || already been delayed by plaintiff's failure to take the steps necessary to move this case forward. 3 | The third factor also slightly favors dismissal, because, at a minimum, defendant has been 4 || deprived of an opportunity to be promptly notified of the lawsuit and prepare its defense. With 5 || the passage of time, witnesses’ memories fade and evidence becomes stale. 6 Furthermore, the fifth factor, availability of less drastic alternatives, favors dismissal 7 || because plaintiff has not responded to any motions presented to the court since filing his 8 | complaint, leaving the court with little alternative but to recommend dismissal. Finally, as to the 9 || fourth factor, the public policy favoring disposition of cases on their merits, that factor is 10 || outweighed by the other Ferdik factors. Indeed, it is plaintiff's own failure to prosecute the case 11 || and comply with the rules that precludes a resolution on the merits. 12 Therefore, after carefully evaluating the Ferdik factors, the court concludes that dismissal 13 || with prejudice is appropriate. 14 RECOMMENDATIONS 15 Accordingly, it is HEREBY RECOMMENDED that: 16 1. The action be DISMISSED pursuant to Federal Rule of Civil Procedure 41(b); and 17 2. The Clerk of Court be directed to CLOSE this case. 18 These findings and recommendations are submitted to the United States District Judge 19 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 20 | days after being served with these findings and recommendations, any party may file written 21 || objections with the court and serve a copy on all parties. Such a document should be captioned 22 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 23 || shall be served on all parties and filed with the court within fourteen (14) days after service of the 24 || objections. The parties are advised that failure to file objections within the specified time may 25 || waive the right to appeal the District court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 26 | 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 27 || Dated: February 16, 2022 aziz.1200 Foci) Aharon KENDALL J.NE TINTITED STATES MA CTETE ATE TINncEe