1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AYANNA UMEKA SPIKES, No. 2:24-cv-0046 DAD DB PS 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 NEWREZ LLC, F/K/A NEW PENNFINANCIAL, LLC D/B/A 15 SHELLPOINT, et al., 16 Defendants. 17 18 Plaintiff Ayanna Umeka Spikes is proceeding in this action pro se. This matter was 19 referred to the undersigned in accordance with Local Rule 302(c)(21) and

(b)(1). 20 On January 12, 2024, defendants McCarthy & Holthus, LPP, and Melissa Robbins Coutts filed a 21 motion to dismiss, which is noticed for hearing before the undersigned on March 29, 2024, 22 pursuant to Local Rule 302(c)(21). (ECF Nos. 4 & 5.) Pursuant to Local Rule 230(c) plaintiff 23 was to file an opposition or a statement of non-opposition to defendants’ motion not less “than 24 fourteen (14) days after the motion was filed.” Plaintiff, however, failed to file a timely 25 opposition or statement of non-opposition to the motion. 26 Accordingly, on February 15, 2024, the undersigned issued an order to show cause, 27 ordering plaintiff to show cause in writing within fourteen days as to why this action should not 28 be dismissed for lack of prosecution, as well as ordering plaintiff to file a statement of opposition 1 or non-opposition to defendant’s motion on or before March 15, 2024. (ECF No. 5.) Plaintiff 2 was warned that the failure to timely comply with that order could result in a recommendation 3 that this case be dismissed. (Id. at 2.) The time provided plaintiff has passed and plaintiff has not 4 responded to the February 15, 2024 order. 5 ANALYSIS 6 The factors to be weighed in determining whether to dismiss a case for lack of prosecution 7 are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need 8 to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring 9 disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of 10 El Monte,

(9th Cir. 1998); Ferdik v. Bonzelet,

(9th Cir. 11 1992); Carey v. King,

(9th Cir. 1988). Dismissal is a harsh penalty that 12 should be imposed only in extreme circumstances. Hernandez,

; Ferdik,

. 14 Failure of a party to comply with the any order of the court “may be grounds for 15 imposition by the Court of any and all sanctions authorized by statute or Rule or within the 16 inherent power of the Court.” Local Rule 110. Any individual representing himself or herself 17 without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local 18 Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable 19 rules and law may be grounds for dismissal or any other sanction appropriate under the Local 20 Rules.

21 Here, plaintiff has failed to oppose defendants’ motion to dismiss and failed to comply 22 with the February 15, 2024 order. Plaintiff was warned that the failure to file a written response 23 to that order could result in a recommendation that this matter be dismissed. In this regard, 24 plaintiff’s lack of prosecution of this case renders the imposition of monetary sanctions futile. 25 Moreover, the public interest in expeditious resolution of litigation, the court’s need to manage its 26 docket, and the risk of prejudice to the defendant all support the imposition of the sanction of 27 dismissal. Only the public policy favoring disposition on the merits counsels against dismissal. 28 However, plaintiff’s failure to prosecute the action in any way makes disposition on the merits an 1 | impossibility. The undersigned will therefore recommend that this action be dismissed due to 2 | plaintiffs failure to prosecute as well as plaintiffs failure to comply with the court’s orders. See 3 | Fed. R. Civ. P. 41(b). 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. Defendants’ January 12, 2024 motion to dismiss (ECF No. 4) is denied without 6 || prejudice as having been rendered moot!; and 7 2, The March 29, 2024 hearing of defendants’ motion 1s vacated. 8 Also, IT IS HEREBY RECOMMENDED that: 9 1. Plaintiffs complaint (ECF No. 1) be dismissed without prejudice; and 10 2. This action be closed. 11 These findings and recommendations are submitted to the United States District Judge 12 | assigned to the case, pursuant to the provisions of

(b)(). Within fourteen days 13 | after being served with these findings and recommendations, any party may file written 14 | objections with the court and serve a copy on all parties. Such a document should be captioned 15 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 16 | shall be served and filed within fourteen days after service of the objections. The parties are 17 | advised that failure to file objections within the specified time may waive the right to appeal the 18 | District Court’s order. Martinez v. Ylst,

(9th Cir. 1991). 19 | Dated: March 26, 2024

21 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 23 24 | DLB:6 35 DB\orders\orders.pro se\spikes0046.dlop.f&rs 26 27 ' Tn the event the assigned District Judge does not adopt these findings and recommendations, 28 | defendants may re-notice the motion for hearing before the undersigned.