1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 THERESA BROOKE, Case No. 1:19-cv-01003-AWI-SAB 10 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF 11 v. ACTION FOR FAILURE TO COMPLY AND FAILURE TO PROSECUTE 12 MODESTO FINANCE LP, (ECF Nos. 7, 8) 13 Defendant. OBJECTIONS DUE WITHIN FOURTEEN 14 DAYS 15 16 I. 17 PROCEDURAL HISTORY 18 On July 23, 2019, Theresa Brooke (“Plaintiff”) filed this action alleging violation of the 19 Americans with Disabilities Act and state law claims. (ECF No. 1.) On August 28, 2019, at 20 Plaintiff’s request, default was entered against Modesto Finance LP (“Defendant”). (ECF Nos. 21 5, 6.) On September 23, 2019, an order issued vacating all dates in the action and ordering 22 Plaintiff to file a motion for default judgment within thirty days. (ECF No. 7.) Plaintiff was 23 advised that the failure to file a motion for default judgment may result in the imposition of 24 sanctions, up to and including dismissal of this action. (Id. at 2.). Plaintiff did not file a motion 25 for default judgment or otherwise respond to the September 23, 2019 order. 26 On October 29, 2019, an order issued requiring Plaintiff to show cause why this action 27 should not be dismissed for failure to prosecute based on Plaintiff’s failure to comply with the September 23, 2019 order. (ECF No. 8.) Plaintiff was advised that failure to show cause would 1 result in the recommendation that this action be dismissed for failure to prosecute. (Id. at 2.) 2 Again, Plaintiff did not comply or otherwise respond to the October 29, 2019 order. 3 II. 4 LEGAL STANDARD 5 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 6 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 7 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to 8 control its docket and may, in the exercise of that power, impose sanctions where appropriate, 9 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 10 2000). 11 III. 12 DISCUSSION 13 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 14 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 15 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 16 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 17 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 18 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 19 United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 20 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 21 of prosecution and failure to comply with local rules). 22 “In determining whether to dismiss an action for lack of prosecution, the district court is 23 required to consider several factors: ‘(1) the public’s interest in expeditious resolution of 24 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; 25 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less 26 drastic sanctions.’ ” Carey, 856 F.2d at 1440 (quoting Henderson v. Duncan, 779 F.2d 1421, 27 1423 (9th Cir. 1986)). These factors guide a court in deciding what to do, and are not conditions 1 that must be met in order for a court to take action. In re Phenylpropanolamine (PPA) Products 2 Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted). 3 In this instance, the public’s interest in expeditious resolution of the litigation and the 4 Court’s need to manage its docket weigh in favor of dismissal. In re PPA Products Liability 5 Litigation, 460 F.3d at 1226. Plaintiff was ordered to file a motion for default judgment within 6 thirty days of September 23, 2019 and did not comply or otherwise respond to the order. 7 Similarly, Plaintiff was ordered to show cause why this action should not be dismissed for the 8 failure to prosecute due to the failure to file a motion for default judgment within ten days of 9 October 29, 2019. Again, Plaintiff did not comply with or otherwise respond to the Court’s 10 order. Plaintiff’s failure to comply with the orders of the Court hinders the Court’s ability to 11 move this action towards disposition, and indicates that Plaintiff does not intend to diligently 12 litigate this action. 13 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 14 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 15 1452-53 (9th Cir. 1994). This risk of prejudice may be rebutted if Plaintiff offers an excuse for 16 the delay. In re Eisen, 31 F.3d at 1453. Here, Plaintiff has twice failed to respond to the Court’s 17 attempts to move this action forward and has not provided any excuse for the lack of compliance. 18 The risk of prejudice to the defendants also weighs in favor of dismissal. 19 The public policy in favor of deciding cases on their merits is greatly outweighed by the 20 factors in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. This 21 action can proceed no further without Plaintiff’s cooperation and compliance with the orders at 22 issue. This action cannot simply remain idle on the Court’s docket, unprosecuted. In this 23 instance, the fourth factor does not outweigh Plaintiff’s failure to comply with the Court’s orders. 24 Finally, a court’s warning to a party that their failure to obey the court’s order will result 25 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 26 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s September 23, 2019 27 order requiring Plaintiff to file a motion for default judgment expressly stated: “Failure to file a 1 | sanctions, up to and including dismissal of this action.” (ECF No. 7 at 2.) Further, the October 2 | 29, 2019 order advised Plaintiff that “Plaintiff is forewarned that the failure to show cause 3 | will result in recommendation that this action be dismissed for failure to prosecute. (ECF 4 | No. 8 at 2 (emphasis in original). Thus, Plaintiff had adequate warning that dismissal would 5 | result from his noncompliance with the Court’s orders. 6 IV. 7 CONCLUSION AND RECOMMENDATION 8 Plaintiff has failed to comply with the Court’s order to file a motion for default judgment 9 | and failed to respond to the order to show cause why this action should not be dismissed for 10 | failure to prosecute. Local Rule 110 provides for sanctions for the failure to comply. 11 In considering the factors to determine if this action should be dismissed, the Court finds 12 | that dismissal of this action is an appropriate sanction for Plaintiff’s failure to comply. 13 Accordingly, IT IS HEREBY RECOMMENDED that this action be DISMISSED for 14 | Plaintiffs failure to comply with orders of the court and failure to prosecute. 15 This findings and recommendations is submitted to the district judge assigned to this 16 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 17 | (14) days of service of this recommendation, Plaintiff may file written objections to this findings 18 | and recommendations with the Court. Such a document should be captioned “Objections to 19 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the 20 | magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 21 | Plaintiff is advised that failure to file objections within the specified time may result in the 22 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 23 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 95 IT IS SO ORDERED. OF. nf ee 26 | Dated: _November 13, 2019 _ Of UNITED STATES MAGISTRATE JUDGE 28