(PC) Rodriguez v. Scnumman ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JULIAN RODRIGUEZ, No. 2:21-cv-1511 TLN KJN P 12 Plaintiff, 13 v. FINDINGS & RECOMMENDATIONS 14 B. SCNUMMAN, 15 Defendant. 16 17 Plaintiff is a former state prisoner, now living in Mexico. On June 30, 2022, plaintiff was 18 granted sixty days in which to oppose defendant’s motion to compel discovery, and cautioned that 19 failure to oppose the motion would result in a recommendation that this action be dismissed based 20 on plaintiff’s failure to cooperate in discovery. On September 12, 2022, defendant filed a 21 declaration attesting that plaintiff has not opposed the motion or provided discovery responses or 22 produced documents to defendant. 23 The court’s docket confirms that plaintiff has not filed an opposition to the motion or 24 otherwise responded to the court’s order. Therefore, the undersigned recommends that this action 25 be dismissed. 26 Legal Standards 27 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an 28 action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 1 1260 (9th Cir. 1992); see also Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002) (affirming 2 district court’s sua sponte dismissal with prejudice “for failure to prosecute and failure to comply 3 with a court order.”). “In determining whether to dismiss a case for failure to comply with a court 4 order the district court must weigh five factors including: ‘(1) the public’s interest in expeditious 5 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 6 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 7 availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (quoting Thompson v. 8 Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46 F.3d 52, 53 9 (9th Cir. 1995). 10 Discussion 11 In evaluating whether this action should be dismissed, the court has considered the five 12 factors set forth in Ferdik. Here, as in Ferdik, the first two factors strongly support dismissal of 13 this action. “[T]he public’s interest in expeditious resolution of litigation always favors 14 dismissal.” Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). This action has 15 been pending since August 23, 2021. The scheduling order issued on March 22, 2022, but was 16 modified on June 27, 2022, based on plaintiff’s failure to respond to discovery requests. “It is 17 incumbent upon the Court to manage its docket without being subject to routine noncompliance 18 of litigants. . . .” Pagtalunan, 291 F.3d at 642. Plaintiff’s failure to cooperate in discovery as well 19 as his failure to comply with the court’s orders suggests that further time spent by the court will 20 consume scarce judicial resources in addressing litigation which plaintiff does not diligently 21 pursue. 22 Under the circumstances of this case, the third factor, prejudice to defendant from 23 plaintiff’s failure to diligently prosecute this action, also favors dismissal. Plaintiff’s failure to 24 respond to the court’s order prevents defendant from completing discovery and taking plaintiff’s 25 deposition. Plaintiff’s failure to cooperate in discovery prevents defendant from preparing 26 pretrial motions. Such failures further delay resolution of this action, thereby causing defendant 27 to incur additional time and expense. Moreover, the underlying incident took place in March of 28 2021; thus, the fading of witness memories is likely, and the risk of loss of evidence is probable. ] The fifth factor also favors dismissal. The court has advised plaintiff of the requirements 2 || under the Local Rules and Federal Rules of Civil Procedure, and granted leeway to plaintiff since 3 || he was deported to Mexico. Despite being granted an additional sixty days to respond to the 4 || motion, plaintiff failed to respond either to defendant or the court. The court finds no suitable 5 || alternative to dismissal of this action where plaintiff fails to diligently prosecute his case or timely 6 || respond to court orders. 7 The fourth factor, public policy favoring disposition of cases on their merits, weighs 8 || against dismissal of this action as a sanction. However, for the reasons set forth above, the first, 9 || second, third, and fifth factors strongly support dismissal. Under the circumstances of this case, 10 || those factors outweigh the general public policy favoring disposition of cases on their merits. See 11 | Ferdik, 963 F.2d at 1263. 12 || Conclusion 13 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without 14 || prejudice. See Fed. R. Civ. P. 37(b)(2)(a)(v). 15 These findings and recommendations are submitted to the United States District Judge 16 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 17 || after being served with these findings and recommendations, plaintiff may file written objections 18 || with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 19 || and Recommendations.” Any response to the objections shall be filed and served within fourteen 20 || days after service of the objections. Plaintiff is advised that failure to file objections within the 21 || specified time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 22 | F.2d 1153 (9th Cir. 1991). 23 || Dated: October 11, 2022 4 Foci) Aharon 25 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 26 27 || fodrlS11.dm 28