Gastelum v. Easiness LP ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FERNANDO GASTELUM, Case No. 1:22-cv-00166-ADA-CDB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT THIS ACTION BE DISMISSED WITHOUT 13 v. PREJUDICE FOR FAILURE TO PROPERLY SERVE DEFENDANT, FAILURE TO PROSECUTE 14 EASINESS LP, AND FAILURE TO COMPLY WITH A COURT ORDER 15 Defendant. OBJECTIONS, IF ANY, ARE DUE WITHIN 16 TWENTY-ONE DAYS. 17 (ECF No. 20) 18 19 Background and Procedural History 20 Plaintiff Fernando Gastelum (“Plaintiff”) proceeding pro se initiated this action against 21 Defendant Easiness LP (“Defendant”) on February 8, 2022. (ECF No. 1). On February 10, 2022, the 22 Court set an initial scheduling conference for May 26, 2022, and advised Plaintiff he “shall diligently 23 pursue service of summons and complaint…” (ECF No. 5). 24 On May 10, 2022, Plaintiff filed an affidavit of non-service describing a process server’s 25 unsuccessful attempt to serve Defendant along with a proof of service stating that the summons and 26 complaint were left with “JOHN JUAREZ, MANAGER IN CHARGE” on May 5, 2022. (ECF Nos. 27 6-7). On May 18, 2022, the Court continued the initial scheduling conference to June 30, 2022, to 28 allow time for Defendant to file a responsive pleading. (ECF No. 8). On June 9, 2022, Plaintiff filed 1 an application for entry of default claiming Defendant had not filed its answer or otherwise defended 2 against his complaint. (ECF No. 9). According to the application, Defendant mailed this filing to 3 “John Juarez, Manager in Charge.” Id. 4 On June 27, 2022, the Court converted the June 30, 2022, initial scheduling conference into a 5 status conference. (ECF No. 10). That day, the Court held a status conference and Plaintiff appeared 6 telephonically. (ECF No. 11). The Court noted Plaintiff’s request for entry of default judgment did 7 not comply with Federal Rule of Civil Procedure 55(a) in that Plaintiff had not submitted an affidavit 8 or unsworn declaration showing that Defendant was properly served and failed to plead or otherwise 9 defend. (ECF No. 12). The Court ordered Plaintiff by no later than July 21, 2022, to file a supplement 10 to his request for a Clerk’s entry of default, addressing the issues regarding service identified during 11 the June 30, 2022, status conference, or to file a motion seeking an extension of time to serve 12 Defendant. Id. at 4. 13 On July 20, 2022, Plaintiff filed a proof of service stating that the summons and complaint 14 were left with “Than Win, Receptionist.” (ECF No. 13). Plaintiff’s process service noted that Than 15 Win “appeared to be in charge at Given Business Location 91765 21725 GATEWAY CENTER DR 16 DIAMOND BAR, CA 91765 at reception desk” and that she “tried to refuse service but confirmed 17 subject would not make himself available to accept.” Id. at 1. 18 On July 28, 2022, the Court issued findings and recommendations recommending that 19 Plaintiff’s application for an entry of default be denied without prejudice as Plaintiff’s request did not 20 comply with Federal Rule of Civil Procedure 55(a). (ECF No. 14). Further, the Court recognized 21 Plaintiff had elected to serve Defendant again making his request ostensibly moot. Id. at 3. Plaintiff 22 did not file objections to the Court’s findings and recommendations. On September 1, 2022, the 23 Honorable District Judge Ana de Alba issued an order adopting in full the Court’s findings and 24 recommendations. (ECF No. 16). 25 The next day, Plaintiff filed a second request for entry of default. (ECF No. 17). Plaintiff’s 26 second request noted a process server served Defendant on July 8, 2022, and Defendant had not filed 27 its answer or otherwise defended. Id. On October 3, 2022, the Court issued findings and 28 recommendations recommending that Plaintiff’s second request for entry of default be denied. (ECF 1 No. 18). The Court again noted Plaintiff’s request for entry of default did not comply with Federal 2 Rule of Civil Procedure 55(a). Id. at 5. The Court found Plaintiff’s request was technically deficient 3 as he failed to submit an affidavit or unsworn declaration. Id. Additionally, the Court determined 4 Plaintiff’s request was substantively deficient as he failed to provide sufficient information for the 5 Court to determine if service was proper under either Federal or California rules. Id. The Court 6 recommended dismissing this case without prejudice to refiling another action if Plaintiff failed to 7 properly serve Defendant by October 31, 2022, or filed a third deficient request for entry of default 8 judgment. Id. at 6. Plaintiff did not file objections to the Court’s findings and recommendation. 9 On December 7, 2022, District Judge de Alba issued an order adopting in part the Court’s 10 findings and recommendations. (ECF No. 20). District Judge de Alba denied without prejudice 11 Plaintiff’s second request for entry of default judgment and ordered Plaintiff to properly serve 12 Defendant by December 14, 2022. Id. at 2. District Judge de Alba noted if Plaintiff filed a third 13 deficient request for entry of default judgment or failed to properly serve Defendant, the action would 14 be dismissed without prejudice. Plaintiff has not filed any response or otherwise indicated an intention 15 to prosecute this case. 16 Accordingly, for the reasons described below, the Court recommends that Plaintiff’s case be 17 dismissed without prejudice for failure to properly serve Defendant, failure to comply with a court 18 order, and failure to prosecute. 19 Discussion 20 A federal court is without personal jurisdiction over a defendant unless the defendant has been 21 served in accordance with Fed. R. Civ. P. 4.” Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 22 1132, 1135 (9th Cir. 2009) (quoting Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986)). If a defendant 23 is not served within 90 days after the complaint is filed, the court on motion or on its own after notice 24 to the plaintiff must dismiss the action without prejudice against that defendant or order that service be 25 made within a specified time. Fed. R. Civ. P. 4(m). 26 Here, well over 90 days have passed. Plaintiff filed the complaint against Defendant on 27 February 8, 2022. (ECF No. 1). The Court provided Plaintiff multiple extensions of time to properly 28 serve Defendant. (ECF Nos. 12, 16, 20); see Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013) 1 (the district court may extend the time for service upon a showing of excusable neglect). The Court 2 even provided Plaintiff instructions on how to pursue service under federal and California state law. 3 (ECF No. 12). However, Plaintiff failed to file proof of service on Defendant in compliance with Rule 4 4. Fed. R. Civ. P. 4(m). Thus, the Court will recommend dismissal of Plaintiff’s complaint for failure 5 to effectuate service. 6 In addition, Plaintiff’s complaint also will be dismissed for failure to follow District Judge de 7 Alba’s order of December 7, 2022, and failure for to prosecute this case. (ECF No. 20). Courts weigh 8 five factors in deciding whether to dismiss a case for failure to comply with a court order: “(1) the 9 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) 10 the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 11 merits; and (5) the availability of less drastic sanctions.” Allen v. Bayer Corp. (In re: 12 Phenylpropanolamine (PPA) Prods. Liab. Litig.), 460 F.3d 1217, 1226 (9th Cir. 2006) (citation 13 omitted). These factors are “not a series of conditions precedent before the judge can do anything,” 14 but for a judge to think about what to do. Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057 15 (9th Cir. 1998). 16 The public’s interest in expeditious resolution of litigation weighs in favor of dismissal of this 17 action. The public has an overriding interest in securing “the just, speedy, and inexpensive 18 determination of every action.” Fed. R. Civ. P. 1; see Yourish v. California Amplifier, 191 F.3d 983, 19 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always favors 20 dismissal.”). Plaintiff was provided instruction and over ten months to serve Defendant. District 21 Judge de Alba ordered Plaintiff to “properly serve Defendant by December 14, 2022.” (ECF No. 20). 22 Plaintiff has failed to respond to the December 7, 2022, order. This action can proceed no further 23 without Plaintiff’s compliance and his failure to comply indicates that Plaintiff does not intend to 24 diligently litigate this action. Accordingly, this factor weighs in favor of dismissal. 25 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 26 determine whether the delay in a particular case interferes with docket management and the public 27 interest…. It is incumbent upon the Court to manage its docket without being subject to routine 28 noncompliance of litigants....” Pagtalunan v. Galaza, 291 F.3d 639, 639 (9th Cir. 2002) (citing Ferdik 1 v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). Here, Plaintiff has failed to respond to the Court’s 2 December 7, 2022, Order. (ECF No. 7). The Court is experiencing an ongoing judicial emergency 3 and heavy caseload. Plaintiff has demonstrating a pattern of failing to comply with the Court’s order 4 directing compliance with the Federal Rules of Civil Procedure. (ECF Nos. 12, 14, 18, 20); see King 5 v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of procedure 6 that govern other litigants.”) (overruled on other grounds). Plaintiff’s failure to respond is delaying 7 the case and interfering with docket management. Therefore, the second factor weighs in favor of 8 dismissal. 9 Turning to the risk of prejudice, a defendant suffers prejudice if a plaintiff’s actions impair a 10 defendant’s ability to go to trial or threaten to interfere with the rightful decision of the case. Adriana 11 Int’l Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990). Plaintiff’s failure to comply with a court 12 order and to prosecute this case imposes sufficient prejudice upon Defendant. Therefore, the third 13 factor weighs in favor of dismissal. 14 Next, because public policy favors disposition of cases on the merits, this factor weighs against 15 dismissal of Plaintiff’s case. See Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) 16 (the public policy favoring disposition of cases on their merits counsels strongly against dismissal). 17 However, on balance, the Court finds the public policy in favor of deciding cases on their merits is 18 outweighed by the factors in favor of dismissal. It was Plaintiff’s responsibility to serve the summons, 19 and complaint upon Defendant and thereafter to file proof of service. Despite being ordered to 20 effectuate service and the Court granting Plaintiff opportunities to do so, Plaintiff has not complied. 21 This action cannot remain idle on the Court’s docket, unprosecuted. Accordingly, this factor does not 22 outweigh Plaintiff’s failures to effectuate service, failure to comply with the Court’s order, and failure 23 to prosecute this case. 24 Lastly, the availability of less drastic sanctions weighs in favor of dismissal. “The district 25 court abuses its discretion if it imposes a sanction of dismissal without first considering the impact of 26 the sanction and the adequacy of less drastic sanctions.” Malone, 833 F.2d at 131-32 (quoting United 27 States v. Nat’l Med. Enters., Inc., 792 F.2d 906, 912 (9th Cir. 1986)). At this stage in the proceedings, 28 there is little available to the Court which would constitute a satisfactory lesser sanction while 1 || protecting the Court from further unnecessary expenditures of its scarce resources. Additionally, the 2 || Court only recommends dismissal without prejudice. Because the dismissal being considered in this 3 || case is without prejudice, the Court is stopping short of using the harshest possible sanction of 4 || dismissal with prejudice. 5 After weighing the factors, the Court finds that dismissal without prejudice is appropriate. 6 || Conclusion and Recommendations 7 Based on the foregoing, the Court HEREBY RECOMMENDS that: 8 1. This action be dismissed without prejudice for failure to properly serve Defendant, failure 9 to prosecute and failure to comply with a court order; and 10 2. The Clerk of Court be directed to close this case. 11 These findings and recommendations will be submitted to the United States district judge 12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 13 || after being served with these findings and recommendations, Petitioner may file written objections 14 || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 15 || Recommendations.” Plaintiffs are advised that failure to file objections within the specified time ma‘ 16 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 17 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 |! TT IS SO ORDERED. 19 aarD Rr Dated: _ December 19, 2022 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28