1 2 3 4 5 6

7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 RITA L. VAUGHN, Case No. 1:24-cv-01514-EPG 11 Plaintiff, FINDINGS AND RECOMMENDATIONS 12 TO STRIKE THE UNSIGNED COMPLAINT v. AND DISMISS THIS ACTION WITHOUT 13 PREJUDICE FOR LACK OF AN OPERATIVE TAKESHA COLLINS, et al., COMPLAINT, FAILURE TO PROSECUTE, 14 AND FAILURE TO COMPLY WITH COURT’S Defendants. ORDERS 15 OBJECTIONS, IF ANY, 16 DUE WITHIN 30 DAYS

17 Plaintiff Rita L. Vaughn is proceeding pro se in this civil action. For reasons stated 18 below, the Court recommends that her complaint be stricken, and that this case be dismissed 19 without prejudice for lack of an operative complaint, failure to prosecute and failure to comply 20 with this Court’s order.1 21 I. BACKGROUND 22 Plaintiff filed an unsigned complaint commencing this action on December 12, 2024. 23 (ECF No. 1). Plaintiff alleges that Evolve Bank, through its manager, took money from her 24 account without permission. (See generally ECF No. 1). Plaintiff moves to proceed in forma 25 pauperis. (ECF No. 2). On December 13, 2024, the Court ordered Plaintiff to file a signed 26 27 28 1 Plaintiff spells Defendant’s name differently throughout the complaint. See, e.g. ECF No. 1 at 1, 2, 3. The Court will use the spelling “Takesha” for the caption of this order. 1 copy of the complaint by January 13, 2025. (ECF No. 3). The Court advised Plaintiff that “this 2 case may be closed or dismissed if she fails to timely file a signed complaint.” (Id.). 3 The deadline to file a signed complaint has now passed, and Plaintiff has not filed a 4 signed complaint. 5 II. LEGAL STANDARDS 6 Federal Rule of Civil Procedure 11(a) requires that:

7 Every pleading, written motion, and other paper must be signed by at least one 8 attorney of record in the attorney’s name—or by a party personally if the party is unrepresented. The paper must state the signer’s address, e-mail address, and 9 telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an 10 unsigned paper unless the omission is promptly corrected after being called to the 11 attorney’s or party’s attention. 12 Fed. R. Civ. P. 11(a). 13 Additionally, under Federal Rule of Civil Procedure 41(b), a court may dismiss an 14 action for failure to comply with court orders and to prosecute. In determining whether to 15 dismiss an action under Rule 41(b) for failure to prosecute or failure to comply with a Court 16 order, “the Court must weigh the following factors: (1) the public’s interest in expeditious 17 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 18 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy 19 favoring disposition of cases on their merits.” Pagtalunan v. Galaza,

(9th 20 Cir. 2002) (citing Ferdik v. Bonzelet,

, 1260–61 (9th Cir. 1992)). 21 III. ANALYSIS 22 A. Lack of Signed Complaint 23 Plaintiff has failed to sign her complaint. (ECF No. 1 at 6). 24 The Federal Rules require that there be an operative complaint in order to proceed with 25 a case. (Fed. Rul. Civ. P. 3) (“A civil action is commenced by filing a complaint with the 26 court.”); Jaquess v. United States, No. 2:16-CV-01710-APG-VCF,

168454, at *1 (D. Nev. Oct. 24, 2016), report and recommendation adopted, 2016 U.S. Dist.

, (D. Nev. Dec. 6, 2016) (finding the action subject to dismissal because there 1 was no operative complaint as required to initiate an action in federal court pursuant to Federal 2 Rule of Civil Procedure 3). 3 Those Federal Rules require that the complaint must be signed. (Fed. R. Civ. P. 11(a)). 4 The rules also state that an unsigned document must be stricken. (Id.).; see, e.g., Roccisano v. 5 Six Unknown Names Agents, No. 1:13-cv-1108,

, at *1 (July 22, 6 2013) (“Unsigned documents cannot be considered by the Court, and Plaintiff’s complaint shall 7 be stricken the record on that ground.”); West v. Hulbert, No. 1:16-CV-00046-DAD,

Dist. LEXIS 64378, at *1 (E.D. Cal. May 16, 2016) (“Because the Court cannot consider 9 unsigned filings, the complaint must be STRICKEN”); Anderson v. Krpan, No. 1:14-CV- 10 01380-AWWI,

, at *5 (E.D. Cal. Jan. 29, 2015) (“The Court 11 cannot consider unsigned filings and therefore, the first amended complaint shall be stricken 12 from the record.”). 13 Accordingly, Plaintiff’s unsigned complaint should be stricken. 14 Furthermore, absent an operative complaint, the action should be dismissed. See 15 Jaquess,

, at *1; see also Lira v. Herrera,

, 1169 16 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a 17 district court may convert the dismissal of the complaint into a dismissal of the entire action.”); 18 Ferdik v. Bonzelet,

(9th Cir. 1992) (explaining that less drastic alternatives 19 were considered when the district court tried alternatives and warned the plaintiff that failure to 20 comply would result in dismissal). 21 B. Failure to Prosecute and Follow Court orders 22 Plaintiff’s case is also subject to dismissal for failure to prosecute and comply with 23 court orders. 24 On December 13, 2024, the Court ordered Plaintiff to file a signed copy of the 25 complaint by January 13, 2025. (ECF No. 3). Plaintiff failed to follow that order and has not 26 filed any response indicating she intends to prosecute the case. 27 In applying the Pagtalunan factors to this case, the first factor weighs in favor of 28 dismissal, because “[t]he public’s interest in expeditious resolution of litigation always favors 1 dismissal.”

(quoting Yourish v. California Amplifier,

(9th Cir. 1999) 2 (internal quotation marks omitted). 3 As to the second factor, the Court’s need to manage its docket, “[t]he trial judge is in 4 the best position to determine whether the delay in a particular case interferes with docket 5 management and the public interest.”

Here, Plaintiff has failed to file a signed complaint or 6 otherwise notify the Court that she wants to continue to pursue this litigation. Allowing this 7 case to proceed further without any indication that Plaintiff intends to prosecute his case is a 8 waste of judicial resources. See Hall v. San Joaquin County Jail, No. 2:13-cv-0324 AC P, 9

, at *2 (E.D. Cal. Sept. 12, 2018) (“The court will not continue to drag out 10 these proceedings when it appears that plaintiffs have no intention of diligently pursuing this 11 case.”). Therefore, the second factor weighs in favor of dismissal. 12 Turning to the third Pagtalunan factor, risk of prejudice to Defendants, “pendency of a 13 lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal.” Pagtalunan, 291 14 F.3d at 642 (citing Yourish,

). However, “delay inherently increases the risk 15 that witnesses’ memories will fade and evidence will become stale,” id. at 643, and it is 16 Plaintiff’s failure to comply with a court order that is causing delay and preventing this case 17 from progressing. Therefore, the third factor weighs in favor of dismissal. 18 As for the availability of lesser sanctions, the fourth Pagtalunan factor, at this stage in 19 the proceedings there is little available to the Court which would constitute a satisfactory lesser 20 sanction while protecting the Court from further unnecessary expenditure of its scarce 21 resources. Monetary sanctions are of little use, considering Plaintiff’s request for in forma 22 pauperis status. (See ECF No. 2). And, given the stage of these proceedings, the preclusion of 23 evidence or witnesses is not available. Moreover, dismissal without prejudice is the lesser 24 sanction available to the Court. Under Federal Rule of Civil Procedure 41(b), a court may 25 dismiss an action with prejudice for failure to comply with court orders and to prosecute. Fed. 26 R. Civ. P. (41)(b); see also Link v. Wabash R. Co.,

, 630–31 (1962) (holding that 27 Rule 41(b) allows sua sponte dismissal by the Court because “[t]he authority of a court to 28 dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,’ 1 || governed not by rule or statute but by the control necessarily vested in courts to manage their 2 || own affairs so as to achieve the orderly and expeditious disposition of cases.”). Therefore, the 3 || fourth factor also weighs in favor of dismissal. 4 Finally, because public policy favors disposition on the merits, this factor weighs 5 || against dismissal. Pagtalunan,

. 6 IV. CONCLUSION AND RECOMMENDATIONS 7 After weighing the factors, the Court finds that dismissal without prejudice is 8 || appropriate. 9 Accordingly, the Clerk of Court is ORDERED to assign a district judge to this case, 10 |] and it is RECOMMENDED that: 11 1. The complaint be stricken pursuant to Federal Rule of Civil Procedure 11(a); 12 2. This action be dismissed without prejudice under Federal Rule of Civil Procedure 3 13 for lack of an operative complaint and Federal Rule of Civil Procedure 41(b) for 14 failure to prosecute and failure to follow Court’s orders; and 15 3. The Clerk of Court be directed to close this case. 16 These findings and recommendations will be submitted to the United States district 17 || judge assigned to the case, pursuant to the provisions of Title

(b)(). Within 18 || thirty days after being served with these findings and recommendations, Plaintiff may file 19 || written objections with the Court. The document should be captioned “Objections to 20 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 21 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 22 || Wheeler,

(9th Cir. 2014) (citing Baxter v. Sullivan,

, 1394 23 |} (9th Cir. 1991)). IT IS SO ORDERED. 25 Dated: _ February 4, 2025 [Je hoy —— 26 UNITED STATES MAGISTRATE JUDGE 27 28