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11 JUDY RONNINGEN CHURCH, et al., ) Case No.: 1:19-cv-0915- DAD JLT ) 12 Plaintiffs, ) FINDINGS AND RECOMMENDATIONS ) DISMISSING THE ACTION WITHOUT 13 v. ) PREJUDICE ) 14 SCOTT KERNAN, et al., ) ) 15 Defendants. ) ) 16 )
17 Plaintiffs contend the defendants are liable for violations of their civil rights and those of 18 Daniel Church, who died while in custody at Wasco State Prison. (Doc. 1) However, as discussed 19 below, the plaintiffs have failed to comply with the Local Rules and the Court’s orders and failed to 20 prosecute this action. Therefore, the Court recommends the matter be DISMISSED without prejudice. 21 I. Background 22 Judy Church, the mother of the decedent, and D.C., the minor child of the decedent, initiated 23 this action by filing a complaint on July 3, 2019. (Doc. 1) The Court issued new civil case documents 24 to the plaintiffs on July 9, 2019, including an order setting a mandatory scheduling conference and 25 directing Plaintiffs to diligently pursue service of the summons and complaint. (Doc. 2) On July 26, 26 2019, the mail to Ms. Church was returned as undeliverable. 27 On September 17, 2019, the Court observed that Plaintiff D.C. had not filed a motion for 28 appointment of a guardian ad litem, though the complaint indicated he was seeking to bring his claims 1 through Cheyenne Dakota Morales, his legal guardian. (Doc. 3) The Court informed Plaintiffs that 2 pursuant to Local Rule 202: 3 Upon commencement of an action or upon initial appearance in defense of an action by or on behalf of a minor or incompetent person, the attorney representing the minor or 4 incompetent person shall present (1) appropriate evidence of the appointment of a representative for the minor or incompetent person under state law or (2) a motion for 5 the appointment of a guardian ad litem by the Court, or, (3) a showing satisfactory to the Court that no such appointment is necessary to ensure adequate representation of 6 the minor or incompetent person.
7 (Doc. 3 at 1, quoting Local Rule 202) Because the claims of a minor such as D.C. could only be 8 brought “by a next friend or a guardian ad litem,” the Court ordered Plaintiffs to file a motion for the 9 appointment of a guardian ad litem for D.C. no later than October 18, 2019. (Id. at 1-2) Again, this 10 order was returned as undeliverable from the address of record for Ms. Church on October 1, 2019. 11 However, it appears service was completed at the address of record for D.C., as no mail was returned 12 by the United States Postal Service. Nevertheless, no motion for the appointment of a guardian ad 13 litem was filed. 14 On October 22, 2019, the Court ordered Plaintiff D.C. to show cause in why the action should 15 not be dismissed for failure to comply with the Court’s order and failure to prosecute the case by 16 seeking the appointment of a guardian ad litem. (Doc. 4) In the alternative, D.C. was directed file a 17 petition for the appointment of a guardian ad litem within fourteen days. (Id.) The Court served both 18 D.C. and Ms. Church with the order. The order to Ms. Church was returned as undeliverable on 19 November 4, 2019. To date, D.C. has not filed a motion for appointment of a guardian ad litem, and no 20 other action has been taken to prosecute the claims of D.C. 21 II. Service by Mail and the Local Rules 22 Pursuant to Local Rule 183(b), a party appearing in propria persona is required to keep the 23 Court apprised of a current address: “If mail directed to a plaintiff in propria persona by the Clerk is 24 returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties 25 within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without 26 prejudice for failure to prosecute.” LR 183(b). Because more than 63 days have passed since the 27 Court’s civil case documents and standing orders were returned as undeliverable, Ms. Church has 28 failed to comply with the Local Rules. 1 III. Failure to Prosecute and Obey the Court’s Orders 2 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a 3 party to comply with . . . any order of the Court may be grounds for the imposition by the Court of any 4 and all sanctions . . . within the inherent power of the Court.” LR 110. “District courts have inherent 5 power to control their dockets,” and in exercising that power, a court may impose sanctions including 6 dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 7 1986). A court may dismiss an action for a party’s failure to prosecute an action or failure to obey a 8 court order. See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure 9 to comply with an order); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal 10 for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 11 (dismissal for failure to prosecute and to comply with local rules). 12 IV. Discussion and Analysis 13 To determine whether to dismiss an action for failure to prosecute, failure to comply with the 14 Local Rules, or failure to obey a court order, the Court must consider several factors, including: “(1) 15 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 16 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 17 merits; and (5) the availability of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also 18 Ferdik, 963 F.2d at 1260-61; Thompson, 782 F.2d at 831. 19 A. Public interest and the Court’s docket 20 In the case at hand, the public’s interest in expeditiously resolving this litigation and the Court’s 21 interest in managing the docket weigh in favor of dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 22 983, 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always favors 23 dismissal”); Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent interest in 24 managing their dockets without being subject to noncompliant litigants). This Court cannot, and will 25 not hold, this case in abeyance based upon the failure of Ms. Church to provide a proper mailing 26 address to the Court and the failure to seek appointment of a guardian ad litem to continue the 27 prosecution of D.C.’s claims and failure to comply with the Court’s orders. Through their failure to 28 comply with the Local Rules and the Court’s orders, Plaintiffs have failed to take action to continue 1 prosecution of this case in a timely manner. See Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 2 (9th Cir. 1991) (a plaintiff has the burden “to move toward… disposition at a reasonable pace, and to 3 refrain from dilatory and evasive tactics”). Accordingly, these factors weigh in favor of dismissal of 4 the action. 5 B. Prejudice to Defendants 6 To determine whether the defendants suffer prejudice, the Court must “examine whether the 7 plaintiff’s actions impair the … ability to go to trial or threaten to interfere with the rightful decision of 8 the case.” Malone, 833 F.2d at 131 (citing Rubin v.
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11 JUDY RONNINGEN CHURCH, et al., ) Case No.: 1:19-cv-0915- DAD JLT ) 12 Plaintiffs, ) FINDINGS AND RECOMMENDATIONS ) DISMISSING THE ACTION WITHOUT 13 v. ) PREJUDICE ) 14 SCOTT KERNAN, et al., ) ) 15 Defendants. ) ) 16 )
17 Plaintiffs contend the defendants are liable for violations of their civil rights and those of 18 Daniel Church, who died while in custody at Wasco State Prison. (Doc. 1) However, as discussed 19 below, the plaintiffs have failed to comply with the Local Rules and the Court’s orders and failed to 20 prosecute this action. Therefore, the Court recommends the matter be DISMISSED without prejudice. 21 I. Background 22 Judy Church, the mother of the decedent, and D.C., the minor child of the decedent, initiated 23 this action by filing a complaint on July 3, 2019. (Doc. 1) The Court issued new civil case documents 24 to the plaintiffs on July 9, 2019, including an order setting a mandatory scheduling conference and 25 directing Plaintiffs to diligently pursue service of the summons and complaint. (Doc. 2) On July 26, 26 2019, the mail to Ms. Church was returned as undeliverable. 27 On September 17, 2019, the Court observed that Plaintiff D.C. had not filed a motion for 28 appointment of a guardian ad litem, though the complaint indicated he was seeking to bring his claims 1 through Cheyenne Dakota Morales, his legal guardian. (Doc. 3) The Court informed Plaintiffs that 2 pursuant to Local Rule 202: 3 Upon commencement of an action or upon initial appearance in defense of an action by or on behalf of a minor or incompetent person, the attorney representing the minor or 4 incompetent person shall present (1) appropriate evidence of the appointment of a representative for the minor or incompetent person under state law or (2) a motion for 5 the appointment of a guardian ad litem by the Court, or, (3) a showing satisfactory to the Court that no such appointment is necessary to ensure adequate representation of 6 the minor or incompetent person.
7 (Doc. 3 at 1, quoting Local Rule 202) Because the claims of a minor such as D.C. could only be 8 brought “by a next friend or a guardian ad litem,” the Court ordered Plaintiffs to file a motion for the 9 appointment of a guardian ad litem for D.C. no later than October 18, 2019. (Id. at 1-2) Again, this 10 order was returned as undeliverable from the address of record for Ms. Church on October 1, 2019. 11 However, it appears service was completed at the address of record for D.C., as no mail was returned 12 by the United States Postal Service. Nevertheless, no motion for the appointment of a guardian ad 13 litem was filed. 14 On October 22, 2019, the Court ordered Plaintiff D.C. to show cause in why the action should 15 not be dismissed for failure to comply with the Court’s order and failure to prosecute the case by 16 seeking the appointment of a guardian ad litem. (Doc. 4) In the alternative, D.C. was directed file a 17 petition for the appointment of a guardian ad litem within fourteen days. (Id.) The Court served both 18 D.C. and Ms. Church with the order. The order to Ms. Church was returned as undeliverable on 19 November 4, 2019. To date, D.C. has not filed a motion for appointment of a guardian ad litem, and no 20 other action has been taken to prosecute the claims of D.C. 21 II. Service by Mail and the Local Rules 22 Pursuant to Local Rule 183(b), a party appearing in propria persona is required to keep the 23 Court apprised of a current address: “If mail directed to a plaintiff in propria persona by the Clerk is 24 returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties 25 within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without 26 prejudice for failure to prosecute.” LR 183(b). Because more than 63 days have passed since the 27 Court’s civil case documents and standing orders were returned as undeliverable, Ms. Church has 28 failed to comply with the Local Rules. 1 III. Failure to Prosecute and Obey the Court’s Orders 2 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a 3 party to comply with . . . any order of the Court may be grounds for the imposition by the Court of any 4 and all sanctions . . . within the inherent power of the Court.” LR 110. “District courts have inherent 5 power to control their dockets,” and in exercising that power, a court may impose sanctions including 6 dismissal of an action. Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 7 1986). A court may dismiss an action for a party’s failure to prosecute an action or failure to obey a 8 court order. See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure 9 to comply with an order); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal 10 for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 11 (dismissal for failure to prosecute and to comply with local rules). 12 IV. Discussion and Analysis 13 To determine whether to dismiss an action for failure to prosecute, failure to comply with the 14 Local Rules, or failure to obey a court order, the Court must consider several factors, including: “(1) 15 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 16 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 17 merits; and (5) the availability of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also 18 Ferdik, 963 F.2d at 1260-61; Thompson, 782 F.2d at 831. 19 A. Public interest and the Court’s docket 20 In the case at hand, the public’s interest in expeditiously resolving this litigation and the Court’s 21 interest in managing the docket weigh in favor of dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 22 983, 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always favors 23 dismissal”); Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent interest in 24 managing their dockets without being subject to noncompliant litigants). This Court cannot, and will 25 not hold, this case in abeyance based upon the failure of Ms. Church to provide a proper mailing 26 address to the Court and the failure to seek appointment of a guardian ad litem to continue the 27 prosecution of D.C.’s claims and failure to comply with the Court’s orders. Through their failure to 28 comply with the Local Rules and the Court’s orders, Plaintiffs have failed to take action to continue 1 prosecution of this case in a timely manner. See Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 2 (9th Cir. 1991) (a plaintiff has the burden “to move toward… disposition at a reasonable pace, and to 3 refrain from dilatory and evasive tactics”). Accordingly, these factors weigh in favor of dismissal of 4 the action. 5 B. Prejudice to Defendants 6 To determine whether the defendants suffer prejudice, the Court must “examine whether the 7 plaintiff’s actions impair the … ability to go to trial or threaten to interfere with the rightful decision of 8 the case.” Malone, 833 F.2d at 131 (citing Rubin v. Belo Broadcasting Corp., 769 F.2d 611, 618 (9th 9 Cir. 1985)). Significantly, a presumption of prejudiced arises when a plaintiff unreasonably delays the 10 prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). Here, Plaintiffs 11 have not taken any action to further the prosecution of the action, despite being ordered by the Court to 12 seek appointment of a guardian ad litem. Therefore, this factor weighs in favor of dismissal. 13 C. Consideration of less drastic sanctions 14 The Court “abuses its discretion if it imposes a sanction of dismissal without first considering 15 the impact of the sanction and the adequacy of less drastic sanctions.” United States v. Nat’l Medical 16 Enterprises, Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, a court’s warning to a party that the 17 failure to obey could result in dismissal satisfies the “consideration of alternatives” requirement. See 18 Malone, 833 F.2d at 133; Ferdik, 963 F.2d at 1262. As the Ninth Circuit explained, “a plaintiff can 19 hardly be surprised” by a sanction of dismissal “in response to willful violation of a pretrial order.” 20 Malone, 833 F.2d at 133. 21 The Court warned Plaintiffs that “[a] court may dismiss an action with prejudice, based on a 22 party’s failure to prosecute an action or failure to obey a court order, or failure to comply with local 23 rules.” (Doc. 4 at 2, citing Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at 130; Henderson, 779 F.2d 24 at 1424) Importantly, the Court need only warn a party once that the matter could be dismissed for 25 failure to comply to satisfy the requirements of Rule 41. Ferdik, 963 F.2d at 1262; see also Titus v. 26 Mercedes Benz of North America, 695 F.2d 746, 749 n.6 (3rd Cir. 1982) (identifying a “warning” as an 27 alternative sanction). Accordingly, the warnings to Plaintiffs satisfied the requirement that the Court 28 consider lesser sanctions, and this factor weighs in favor of dismissal of the action. See Ferdik, 963 1 F.2d at 1262; Henderson, 779 F.2d at 1424; Titus, 695 F.2d at 749 n.6. Moreover, no lesser sanction is 2 feasible for the actions of Ms. Church given the Court’s inability to communicate with her. 3 D. Public policy 4 Given Plaintiffs’ failure to prosecute the action and failure to comply with the Court’s orders to 5 seek appointment of a guardian ad litem, the policy favoring disposition of cases on their merits is 6 outweighed by the factors in favor of dismissal. See Malone, 833 F.2d at 133, n.2 (explaining that 7 although “the public policy favoring disposition of cases on their merits . . . weighs against dismissal, 8 it is not sufficient to outweigh the other four factors”). 9 V. Findings and Recommendations 10 Plaintiffs have failed to follow the requirements of the Local Rules and failed to prosecute this 11 action through not communicating with the Court and complying with its Orders dated September 17, 12 2019 (Doc. 3) and October 22, 2019 (Doc. 4). As set forth above, the factors set forth by the Ninth 13 Circuit weigh in favor of dismissal of the matter. Accordingly, the Court RECOMMENDS: 14 1. This action be DISMISSED without prejudice; and 15 2. The Clerk of Court be directed to close this action. 16 These Findings and Recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local 18 Rules of Practice for the United States District Court, Eastern District of California. Within fourteen 19 days after being served with these Findings and Recommendations, Plaintiff may file written objections 20 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 21 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 22 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); 23 Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014). 24
26 Dated: November 18, 2019 /s/ Jennifer L. Thurston 27 UNITED STATES MAGISTRATE JUDGE