(PS) Rhee v. Medical Board of CA ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HANNA Q. RHEE, MD, No. 2:23-cv-0438 KJM DB PS 12 Plaintiff, 13 v. ORDER AND 14 MEDICAL BOARD OF CALIFORNIA, et FINDINGS AND RECOMMENDATIONS al., 15 16 Defendants, 17 18 Plaintiff Hanna Q. Rhee is proceeding in this action pro se. This matter was referred to 19 the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On May 20 16, 2023, defendant American Board of Psychiatry & Neurology, Inc., filed a motion to dismiss 21 and noticed the motion for hearing before the undersigned on June 23, 2023, pursuant to Local 22 Rule 302(c)(21). (ECF No. 17.) Pursuant to Local Rule 230(c) plaintiff was to file an opposition 23 or a statement of non-opposition to defendant’s motions not less “than fourteen (14) days after the 24 motion was filed.” Plaintiff, however, failed to file a timely opposition or statement of non- 25 opposition to the motion. 26 Accordingly, on June 20, 2023, the undersigned issued an order to show cause, ordering 27 plaintiff to show cause in writing within fourteen days as to why this action should not be 28 dismissed for lack of prosecution. (ECF No. 33.) Plaintiff was also provided until July 14, 2023 1 to file an opposition or statement of non-opposition to defendant’s motion to dismiss. (Id. at 2.) 2 Plaintiff was warned that the failure to timely comply with that order could result in a 3 recommendation that this case be dismissed. (Id. at 3.) Nonetheless, the time provided plaintiff 4 has expired and plaintiff has not responded to the June 20, 2023 order. 5 ANALYSIS 6 The factors to be weighed in determining whether to dismiss a case for lack of prosecution 7 are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need to 8 manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring 9 disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of 10 El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 11 1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that 12 should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d 13 at 1260. 14 Failure of a party to comply with the any order of the court “may be grounds for 15 imposition by the Court of any and all sanctions authorized by statute or Rule or within the 16 inherent power of the Court.” Local Rule 110. Any individual representing himself or herself 17 without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local 18 Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable 19 rules and law may be grounds for dismissal or any other sanction appropriate under the Local 20 Rules. Id. 21 Here, plaintiff has failed to respond to an order of this court and failed to oppose 22 defendant’s motion to dismiss. Plaintiff was warned that the failure to file a written response 23 could result in a recommendation that this matter be dismissed. In this regard, plaintiff’s lack of 24 prosecution of this case renders the imposition of monetary sanctions futile. Moreover, the public 25 interest in expeditious resolution of litigation, the court’s need to manage its docket, and the risk 26 of prejudice to the defendant all support the imposition of the sanction of dismissal. Only the 27 public policy favoring disposition on the merits counsels against dismissal. However, plaintiff’s 28 failure to prosecute the action in any way makes disposition on the merits an impossibility. The 1 undersigned will therefore recommend that this action be dismissed due to plaintiff’s failure to 2 prosecute as well as plaintiff’s failure to comply with the Court’s orders. See Fed. R. Civ. P. 3 41(b). 4 Accordingly, IT IS HEREBY ORDERED that1: 5 1. Plaintiff’s March 20, 2023 motion to expedite (ECF No. 8) is denied without prejudice 6 as having been rendered moot; 7 2. Plaintiff’s May 1, 2023 motion to dismiss (ECF No. 13) is denied without prejudice as 8 having been rendered moot; 9 3. Defendant’s May 12, 2023 motion to dismiss (ECF No. 14) is denied without prejudice 10 as having been rendered moot; and 11 4. Defendant’s May 16, 2023 motion to dismiss (ECF No. 17) is denied without prejudice 12 as having been rendered moot. 13 Also, IT IS HEREBY RECOMMENDED that: 14 1. Plaintiff’s complaint filed March 9, 2023 (ECF No. 1) be dismissed without prejudice; 15 and 16 2. This action be closed. 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)(l). Within fourteen days 19 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 and filed within fourteen days after service of the objections. The parties are 23 //// 24 //// 25 //// 26 //// 27 1 In the event these findings and recommendations are not adopted the parties may re-notice their 28 motions for hearing before the undersigned. 1 | advised that failure to file objections within the specified time may waive the right to appeal the 2 | District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 3 | Dated: July 25, 2023 4 5 6 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 DLB:6 25 || DB/orders/orders.pro se/rubino0122.dlop.f&rs 26 27 28