(PS) Huberty v. IRS ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW J. HUBERTY, et. al., No. 2:22-cv-827-DJC-KJN PS 12 Plaintiffs, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO PROSECUTE 13 v. 14 INTERNAL REVENUE SERVICE, 15 Defendant. 16 17 Plaintiff, proceeding without the assistance of counsel, filed a complaint against defendant 18 in May of 2022 and requested leave to proceed without prepayment of the filing fee. (ECF Nos. 19 1, 2.) Defendant moved to dismiss, and plaintiff requested leave to amend the complaint. (ECF 20 Nos. 10, 13.) The court held a hearing on November 23, 2022, granting dismissal but granting 21 plaintiff Robert Huberty leave to amend, within 45 days, after retaining counsel. (ECF No. 17.) 22 On April 10, 2023, the court noted that significant time had passed without an amended complaint 23 being filed. Rather than recommending dismissal at that time, however, the court ordered 24 plaintiff to inform the court why he had not amended his complaint. (ECF No. 19.) Plaintiff was 25 given another 14 days to show cause and was warned—in even stricter terms—that failure to 26 comply “will result in a recommendation that this action be dismissed with prejudice under Rule 27 41(b).” (Id.) More than 14 days passed without a response from plaintiff. Accordingly, the 28 undersigned recommends dismissing this case with prejudice under Rule 41(b). 1 A district court may impose sanctions, including involuntary dismissal of a plaintiff’s case 2 pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her 3 case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s 4 local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court 5 “may act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation 6 Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (approving sua sponte dismissals 7 under Rule 41(b)); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to 8 follow a district court’s local rules is a proper ground for dismissal.”); Ferdik v. Bonzelet, 963 9 F.2d 1258, 1260 (9th Cir. 1992), as amended (May 22, 1992) (“Pursuant to Federal Rule of Civil 10 Procedure 41(b), the district court may dismiss an action for failure to comply with any order of 11 the court.”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per 12 curiam) (stating that district courts have inherent power to control their dockets and may impose 13 sanctions including dismissal or default). This court’s Local Rules are in accord. See E.D. Cal. 14 Local Rule 110 (“Failure of counsel or of a party to comply with these Rules or with any order of 15 the Court may be grounds for imposition by the Court of any and all sanctions authorized by 16 statute or Rule or within the inherent power of the Court.”); E.D. Cal. Local Rule 183(a) 17 (providing that a pro se party’s failure to comply with the Federal Rules of Civil Procedure, the 18 court’s Local Rules, and other applicable law may support, among other things, dismissal of that 19 party’s action). 20 A court must weigh five factors in determining whether to dismiss a case for failure to 21 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 22 rules. See Ferdik, 963 F.2d at 1260. These are: 23 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 24 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 25 (5) the availability of less drastic alternatives. 26 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 27 Here, the first two factors weigh in favor of dismissal, because this case was delayed by 28 plaintiff’s failure to take the steps necessary to move this case forward. The third factor also 1 | favors dismissal, because, at a minimum, defendants have been deprived of an opportunity to 2 || prepare their defense; with the passage of time, memories fade and evidence becomes stale. The 3 || fifth factor also favors dismissal because the court has already attempted less drastic alternatives. 4 || Specifically, after informing plaintiff of the deficiencies in the complaint, Robert Huberty was 5 || granted leave to amend. However, plaintiff filed nothing since then, leaving the court with little 6 || alternative but to recommend dismissal. Given plaintiff's request to proceed IFP, it is unlikely 7 || that monetary sanctions would be effective. As to the fourth factor, the public policy favoring 8 | disposition of cases on their merits, that factor is outweighed by the other Ferdik factors. Indeed, 9 || it is plaintiff's own failure to prosecute the case and comply with the rules that precludes a 10 || resolution on the merits. Therefore, after carefully evaluating the Ferdik factors, the court 11 || concludes that dismissal is appropriate. 12 Accordingly, IT IS HEREBY RECOMMENDED that: 13 1. Plaintiff's claims be DISMISSED WITH PREJUDICE pursuant to Federal Rule of 14 Civil Procedure 41(b); and 15 2. The Clerk of Court be directed to CLOSE this case. 16 || These findings and recommendations are submitted to the United States District Judge assigned to 17 || the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after 18 || being served with these findings and recommendations, any party may file written objections with 19 | the court and serve a copy on all parties. Such a document should be captioned “Objections to 20 | Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served 21 || □□ □□□ parties and filed with the court within fourteen (14) days after service of the objections. 22 || The parties are advised that failure to file objections within the specified time may waive the right 23 || to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); 24 || Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 25 || Dated: May 3, 2023 %6 Foci) Aharon 27 KENDALL J. NE hube.827 UNITED STATES MAGISTRATE JUDGE 28