Sanz v. City of Vallejo ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL SANZ, No. 2:19-cv-2134 TLN DB 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CITY OF VALLEJO, et al., 15 Defendants, 16 17 On November 2, 2022, the assigned District Judge ordered the parties to appear before 18 Magistrate Judge Carolyn K. Delaney for a settlement conference. (ECF No. 21.) Plaintiff, 19 plaintiff’s counsel, defendants, and defendants’ counsel appeared before Magistrate Judge 20 Delaney on January 25, 2023, for a settlement conference. (ECF No. 23.) Plaintiff, however, left 21 before the settlement conference concluded without explanation. (Id.) 22 Accordingly, on January 27, 2023, Magistrate Judge Delaney issued plaintiff an order to 23 show cause as to why plaintiff should not be sanctioned $500 for failing to fully participate in the 24 settlement conference as ordered. (ECF No. 24.) Plaintiff did not respond in any manner to the 25 court’s January 27, 2023 order. 26 On April 3, 2023, Magistrate Judge Delaney issued an order ordering plaintiff to pay a 27 sanction in the amount of $500 within 14 days. (ECF No. 25.) Plaintiff was cautioned that the 28 failure to timely comply with that order could result in the dismissal of this action. (Id.) Yet 1 again, plaintiff failed to respond to the court’s order. Accordingly, on April 17, 2023, Magistrate 2 Judge Delaney issued yet another order, ordering plaintiff to pay the sanction within 30 days and 3 again warning plaintiff that failure to comply could result in dismissal. (ECF No. 26.) 4 Nonetheless, the time provided plaintiff has expired and plaintiff has once again not responded to 5 the court’s order. 6 ANALYSIS 7 The factors to be weighed in determining whether to dismiss a case for lack of prosecution 8 are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need to 9 manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring 10 disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of 11 El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 12 1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that 13 should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d 14 at 1260. 15 Failure of a party to comply with the any order of the court “may be grounds for 16 imposition by the Court of any and all sanctions authorized by statute or Rule or within the 17 inherent power of the Court.” Local Rule 110. Any individual representing himself or herself 18 without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local 19 Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable 20 rules and law may be grounds for dismissal or any other sanction appropriate under the Local 21 Rules. Id. 22 Here, plaintiff has failed to respond to multiple orders of the court. Plaintiff was warned 23 that the failure to written response could result in the dismissal of this action. Plaintiff 24 nonetheless did not respond to the court’s orders. In this regard, plaintiff’s lack of prosecution of 25 this case renders the imposition of monetary sanctions futile. Moreover, the public interest in 26 expeditious resolution of litigation, the court’s need to manage its docket, and the risk of 27 prejudice to the defendants all support the imposition of the sanction of dismissal. Only the 28 public policy favoring disposition on the merits counsels against dismissal. However, plaintiff’s 1 | failure to prosecute the action in any way makes disposition on the merits an impossibility. The 2 | undersigned will therefore recommend that this action be dismissed due to plaintiff's failure to 3 || prosecute as well as plaintiffs failure to comply with the court’s orders. See Fed. R. Civ. P. 4 41(b). 5 Accordingly, IT IS HEREBY RECOMMENDED that: 6 1. Plaintiff's complaint filed October 22, 2019 (ECF No. 1) be dismissed without 7 | prejudice; and 8 2. This action be closed. 9 These findings and recommendations are submitted to the United States District Judge 10 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 11 | after being served with these findings and recommendations, any party may file written 12 | objections with the court and serve a copy on all parties. Such a document should be captioned 13 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 14 | shall be served and filed within fourteen days after service of the objections. The parties are 15 | advised that failure to file objections within the specified time may waive the right to appeal the 16 | District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 | Dated: May 25, 2023 19 0 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 21 22 23 DLB:6 24 | DB/orders/orders.civil/sanz2134.dlop.f&rs 25 26 27 28