(PS) Botelho v. Monetary Management of California, Inc. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CONNIE BOTELHO, No. 2:18–cv–838–MCE–KJN PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO PROSECUTE 13 v. 14 MONETARY MANAGEMENT OF CALIFORNIA, INC, 15 Defendant. 16 17 On April 5, 2018, plaintiff filed a complaint in this court with the assistance of counsel. 18 (ECF No. 1.) The action was stayed pending arbitration, but in late 2019 plaintiff’s counsel filed 19 a notice of withdrawal. (ECF Nos. 13, 16.) Counsel filed a formal motion to withdraw in April 20 of 2020 noting plaintiff had “ceased all communications” with counsel, and the district court 21 granted this request. (ECF Nos. 18, 20.) In March of 2022, the court ordered a joint status report 22 from the parties, and defendant responded that since counsel’s withdrawal, plaintiff had not taken 23 any steps to prosecute the action. (ECF Nos. 21, 23.) The district court referred this matter to the 24 undersigned under Local Rule 302(c)(21), and the court ordered plaintiff to show cause why the 25 action should not be dismissed for failure to prosecute. (ECF Nos 24, 25.) No response was had 26 from plaintiff, who has been absent from these proceedings since early 2020. 27 //// 28 //// 1 For the reasons stated below, the court RECOMMENDS dismissal of this action with 2 prejudice for failure to prosecute. 3 DISCUSSION 4 Eastern District Local Rule 183(a) provides, in part: 5 Any individual representing himself [] without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. 6 All obligations placed on “counsel” by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal, 7 judgment by default, or any other sanction appropriate under these Rules. 8 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the 9 same rules of procedure that govern other litigants”) (overruled on other grounds). A district 10 court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to 11 Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or 12 fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local 13 rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act 14 sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. 15 Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action 16 pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 17 or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 18 53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground 19 for dismissal.”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal 20 Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with 21 any order of the court.”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th 22 Cir. 1986) (per curiam) (stating that district courts have inherent power to control their dockets 23 and may impose sanctions including dismissal or default). 24 A court must weigh five factors in determining whether to dismiss a case for failure to 25 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 26 rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider: 27 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 28 1 the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. 2 3 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 4 Here, the first two Ferdik factors weigh in favor of dismissal because this case has already 5 been delayed by plaintiff’s failure to take the steps necessary to move it forward. The third factor 6 also favors dismissal, because, at a minimum, defendants have been deprived of an opportunity to 7 prepare their defense; with the passage of time, witnesses’ memories fade and evidence becomes 8 stale. Furthermore, the fifth factor, availability of less drastic alternatives, favors dismissal, 9 because the court has already attempted less drastic alternatives. Specifically, the court, 10 cognizant of plaintiff’s pro se status, provided her with an opportunity to explain why she had not 11 taken steps to move this case forward after two years with no action, but no response was had. 12 (ECF No. 25.) Simply, plaintiff has been incommunicado since her attorney withdrew in 2020 13 (due to plaintiff’s failure to communicate), leaving the court with little alternative but to 14 recommend dismissal. Finally, as to the fourth factor, the public policy favoring disposition of 15 cases on their merits, that factor is outweighed by the other Ferdik factors. Indeed, it is plaintiff’s 16 own failure to prosecute the case and comply with the rules that precludes a resolution on the 17 merits. Therefore, under the Ferdik factors, the court concludes that dismissal is appropriate. 18 RECOMMENDATIONS 19 Accordingly, it is HEREBY RECOMMENDED that: 20 1. The action be DISMISSED pursuant to Federal Rule of Civil Procedure 41(b); and 21 2. The Clerk of Court be directed to CLOSE this case. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 24 days after being served with these findings and recommendations, any party may file written 25 objections with the court and serve a copy on all parties. Such a document should be captioned 26 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that 27 failure to file objections within the specified time may waive the right to appeal the District 28 1 | court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 2 | 1153, 1156-57 (9th Cir. 1991). 3 || Dated: August 5, 2022 ' Acid) Aharon 5 KENDALL J. NE bote.838 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28