(PS) Chavez v. Del Sol Farm Labor Services Inc.

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA ANTONIO CHAVEZ, No. 2:19-cv-00890-TLN-CKD PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS DEL SOL FARM LABOR SERVICES INC., et al., Defendants.

17 On May 17, 2019, plaintiff filed the present action against defendants Del Sol Farm Labor Services, Inc. and Zenith Insurance, and was instructed by the court to complete service within 90 days of that date. (ECF No. 3.) From the record before the court, it appears that no defendant has been served. (See ECF No. 5.) The court held an initial scheduling conference on October 16, 2019, however, plaintiff failed to appear (ECF No. 6), although he later informed the court he was sick. (See ECF No. 7.)

23 In response to plaintiff’s failure to prosecute his case and follow orders from the court, on January 22, 2020, the court issued an order for plaintiff to show cause as to why this case should not be dismissed. (ECF No. 8.) Plaintiff was ordered to respond within 14 days and cautioned that “[f]ailure to timely comply with the terms of this order will result in a recommendation that this action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b).” (Id.) That deadline has since passed and plaintiff has not responded.

1 Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court.”

4 Moreover, Eastern District Local Rule 183(a) provides, in part: 5 Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these 6 Rules, and all other applicable law. All obligations placed on “counsel” by these Rules apply to individuals appearing in propria 7 persona. Failure to comply therewith may be ground for dismissal, judgment by default, or any other sanction appropriate under these 8 Rules.

9 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of procedure that govern other litigants”) (overruled on other grounds). A district court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground for dismissal”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam) (stating that district courts have inherent power to control their dockets and may impose sanctions including dismissal or default).

25 A court must weigh five factors in determining whether to dismiss a case for failure to prosecute, failure to comply with a court order, or failure to comply with a district court’s local rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider: //// 1 (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 2 the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives.

4 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002).

5 Here, the first two factors weigh in favor of dismissal, because this case has already been delayed by plaintiff’s failure to take the steps necessary to move this case forward. The third factor also slightly favors dismissal, because, at a minimum, defendants have been deprived of an opportunity to be promptly notified of the lawsuit and prepare a defense. With the passage of time, witnesses’ memories fade and evidence becomes stale.

10 Furthermore, the fifth factor, availability of less drastic alternatives, favors dismissal, because the court has already attempted less drastic remedies. The court, cognizant of plaintiff’s pro se status, clearly cautioned plaintiff regarding the potential consequences of any continued failure to comply with the court’s orders. However, even after this warning, plaintiff has failed to respond to the court’s order and has failed to prosecute his case.

15 Finally, as to the fourth factor, the public policy favoring disposition of cases on their merits, that factor is outweighed by the other Ferdik factors. Indeed, it is plaintiff’s own failure to prosecute the case and comply with court orders that precludes a resolution on the merits.

18 Therefore, after carefully evaluating the Ferdik factors, the court concludes that dismissal is appropriate.

20 FINDINGS AND RECOMMENDATIONS 21 Accordingly, IT IS HEREBY RECOMMENDED that: 22 1. The action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 23 41(b).

24 2. The Clerk of Court be directed to close this case.

25 These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written | objections with the court and serve a copy on all parties. Such a document should be captioned | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections | within the specified time may waive the right to appeal the District Court’s order. Martinez v. 4 Ylst, 951 F.2d 1153 (9th Cir. 1991).

5 | Dated: February 27, 2020 f° Lf i, / CAN fu fl. ay 6 CAROLYN K. DELANEY 7 UNITED STATES MAGISTRATE JUDGE || 16.890.chavez