(PS) Zazai v. Graff Logistics LLC ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FAZAL REHMAN ZAZAI; SKYLAND No. 2:22-cv-1729 KJM DB PS LOGISTICS LLC, 12 Plaintiffs, 13 FINDINGS AND RECOMMENDATIONS v. 14 GRAFF LOGISTICS LLC, 15 16 Defendant. 17 18 Plaintiff Fazal Rehman Zazai is proceeding in this action pro se. This matter was referred 19 to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On 20 September 30, 2022, plaintiff filed a complaint and paid the applicable filing fee. (ECF No. 1.) 21 That same day plaintiff was served with a letter advising plaintiff that Rule 4 of the Federal Rules 22 of Civil Procedure “provides that if a defendant is not served within 90 days after service is order 23 the court must dismiss the defendant without prejudice.” (ECF No. 3 at 1.) However, no 24 defendant appeared in this action. 25 Accordingly, on April 6, 2023, the undersigned issued an order to show cause, ordering 26 plaintiff to show cause in writing within twenty-one days as to why this action should not be 27 dismissed for lack of prosecution. (ECF No. 6.) Plaintiff was warned that the failure to timely 28 comply with that order could result in a recommendation that this case be dismissed. (Id. at 3.) 1 Nonetheless, the time provided plaintiff has expired and plaintiff has not responded to the April 6, 2 2023 order. 3 ANALYSIS 4 The factors to be weighed in determining whether to dismiss a case for lack of prosecution 5 are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need 6 to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring 7 disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of 8 El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 9 1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that 10 should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d 11 at 1260. 12 Failure of a party to comply with the any order of the court “may be grounds for 13 imposition by the Court of any and all sanctions authorized by statute or Rule or within the 14 inherent power of the Court.” Local Rule 110. Any individual representing himself or herself 15 without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local 16 Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable 17 rules and law may be grounds for dismissal or any other sanction appropriate under the Local 18 Rules. Id. 19 Here, no defendant has appeared in this action. And plaintiff has failed to respond to the 20 April 6, 2023 order. Plaintiff was warned that the failure to file a written response to that order 21 could result in a recommendation that this matter be dismissed. In this regard, plaintiff’s lack of 22 prosecution of this case renders the imposition of monetary sanctions futile. Moreover, the public 23 interest in expeditious resolution of litigation, the court’s need to manage its docket, and the risk 24 of prejudice to the defendant all support the imposition of the sanction of dismissal. Only the 25 public policy favoring disposition on the merits counsels against dismissal. However, plaintiff’s 26 failure to prosecute the action in any way makes disposition on the merits an impossibility. The 27 undersigned will therefore recommend that this action be dismissed due to plaintiff’s failure to 28 //// 1 prosecute as well as plaintiff’s failure to comply with the court’s orders. See Fed. R. Civ. P. 2 41(b). 3 Accordingly, IT IS HEREBY RECOMMENDED that: 4 1. Plaintiff’s September 30, 2022 complaint (ECF No. 1) be dismissed without prejudice; 5 and 6 2. This action be closed. 7 These findings and recommendations will be submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 9 days after being served with these findings and recommendations, plaintiff may file written 10 objections with the court. A document containing objections should be titled “Objections to 11 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 12 objections within the specified time may, under certain circumstances, waive the right to appeal 13 the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 DATED: October 20, 2023 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 DLB:6 26 DB\orders\orders.pro se\zazai1729.dlop.f&rs 27 28