1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8
9 ALVERA DAILEY-HENRY, Case No. 1:24-cv-00347-KES-SKO
10 Plaintiff, F T I O N D D I I S N M G I S S A S N F D O R R E F C A O IL M U M RE E N T D O A TION 11 COMPLY WITH THE COURT’S v. ORDERS AND FAILURE TO 12 PROSECUTE
13 LAND O’LAKE, INC, (Docs. 16, 17, 18, 19)
14 Defendant. TWENTY-ONE DAY DEADLINE
15 16 I. INTRODUCTION 17 18 Plaintiff Alvera Dailey-Henry filed this case, on March 21, 2024, (Doc. 1), and now proceeds 19 pro se, (see Doc. 14). On April 25, 2025—after attempting to contact Plaintiff no less than three 20 times regarding her failure to respond to discovery requests, (see Doc. 17-3 ¶¶ 10–14, see also Docs. 21 17-6, 17-7, 17-8))—Defendant filed two motions to compel Plaintiff’s responses to written 22 discovery and appearance at a deposition. (Docs. 16, 17). Plaintiff did not timely respond. 23 On May 14, 2025, an order issued for Plaintiff to show cause (“OSC”) and to respond by 24 May 26, 2025. (See Doc. 19). The OSC expressly warned Plaintiff that failure to comply with the 25 Court’s order would “be deemed a waiver of any opposition to the granting of the motion and may 26 result in the imposition of sanctions, up to an including a recommendation that this case be dismissed 27 for failure to prosecute.” (Id. at 2). Plaintiff has not yet filed any response, and the time to do so 28 has passed. 1 II. ANALYSIS 2 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide, “[f]ailure of counsel or of 3 a party to comply with . . . any order of the Court may be grounds for the imposition by the Court 4 of any and all sanctions . . . within the inherent power of the Court.” E.D. Cal. Local Rule 110; see 5 also E.D. Cal. Local Rule 183(a). “District courts have inherent power to control their dockets,” 6 and in exercising that power, a court may impose sanctions, including dismissal of an action. 7 Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may 8 dismiss an action, with prejudice, based on a party’s failure to prosecute an action or failure to obey 9 a court order, or failure to comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 10 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of 11 complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure 12 to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal 13 for failure to prosecute and to comply with local rules). 14 In determining whether to dismiss a claim for failure to prosecute or failure to comply with 15 a court order, the Court must weigh the following factors: (1) the public’s interest in expeditious 16 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 17 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy 18 favoring disposition of cases on their merits. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th 19 Cir. 1992). 20 Considering these factors in light of Plaintiff’s repeated failure to participate in the 21 prosecution of their case, the undersigned finds that all factors weigh in favor of dismissal. See 22 Cooksie v. Pac., Gas & Elec. Co., No. 2:12-CV-1445 LKK AC, 2013 WL 3872829, at *3 (E.D. Cal. 23 July 25, 2013) (“By refusing to participate in discovery throughout the discovery period, and by 24 failing to oppose the instant motion and appear at today's hearing, plaintiff has violated the discovery 25 rules and the orders of this court and has failed to prosecute her lawsuit. In light of the plaintiff's 26 conduct, the court agrees with the defendants that all factors weigh in favor of dismissal.”). 27 A. Expeditious resolution of litigation 28 Orderly and expeditious resolution of disputes serves the public interest and “is of 1 great importance to the rule of law.” In re PPA Products Liability Litigation, 460 F.3d 1217, 1227 2 (9th Cir. 2006). Plaintiff has disregarded the public's interest by refusing to participate in discovery. 3 (See Docs. 17-6, 17-7, 17-8). Her non-compliance will necessarily prolong the litigation, without 4 any showing of cause for the delay. 5 B. Court’s Need to Manage its Docket 6 Plaintiff’s past conduct demonstrates disregard for the court’s resources and the need 7 for orderly case management. In light of Plaintiff’s past conduct, the undersigned concludes that 8 continued litigation would likely result in continued non-compliance, wasteful pretrial activities, 9 and the pointless expenditure of judicial resources. See In re PPA Products, 460 F.3d at 1227 10 (discussing circumstances related to docket management that support dismissal for discovery 11 noncompliance and failure to prosecute). 12 C. Risk of Prejudice to Defendant 13 “A defendant suffers prejudice if the plaintiff's actions impair the defendant’s ability 14 to go to trial or threaten to interfere with the rightful decision of the case.” Adriana Int’l Corp. v. 15 Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990). Failure to appear at deposition and to produce 16 documents constitutes prejudice. Id. Moreover, the law presumes prejudice from undue delay. In 17 re PPA Products, 460 F.3d at 1227. If the plaintiff proffers a non-frivolous excuse for delay, the 18 burden shifts to defendant to demonstrate actual prejudice. Id. at 1228. Here, Plaintiff has offered 19 no excuse for failing to comply with her discovery obligations within the time frame established by 20 the scheduling order. Defendant has already born costs of time and money in preparing the motions 21 to compel. Without any responses to discovery, Defendant cannot adequately defend themselves in 22 this action. Accordingly, Plaintiff’s actions impair Defendant’s ability to go to trial and to obtain 23 rightful decision of the case. Prejudice on these facts is both presumed and actual. 24 D. Disposition on the Merits 25 Although the policy favoring disposition of a case on its merits counsels against 26 dismissal, “a case that is stalled or unreasonably delayed by a party's failure to comply with 27 deadlines and discovery obligations cannot move forward toward resolution on the merits.” In re 28 PPA Products, 460 F.3d at 1227. Accordingly, this factor does not protect from terminal sanctions 1 “a party whose responsibility it is to move a case toward disposition on the merits but whose conduct 2 impedes progress in that direction.” Id. Plaintiff’s conduct in this case has seriously impeded 3 progress of the case toward resolution on the merits. The case is presently stalled due to Plaintiff’s 4 failure to participate in discovery and failure to appear. Accordingly, the general desirability of 5 disposition on the merits does not weigh against dismissal here. 6 E. Availability of Less Drastic Sanctions 7 Less drastic sanctions might have been imposed had Plaintiff appeared in opposition 8 to the motion and indicated her willingness to comply with future orders of the court.
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8
9 ALVERA DAILEY-HENRY, Case No. 1:24-cv-00347-KES-SKO
10 Plaintiff, F T I O N D D I I S N M G I S S A S N F D O R R E F C A O IL M U M RE E N T D O A TION 11 COMPLY WITH THE COURT’S v. ORDERS AND FAILURE TO 12 PROSECUTE
13 LAND O’LAKE, INC, (Docs. 16, 17, 18, 19)
14 Defendant. TWENTY-ONE DAY DEADLINE
15 16 I. INTRODUCTION 17 18 Plaintiff Alvera Dailey-Henry filed this case, on March 21, 2024, (Doc. 1), and now proceeds 19 pro se, (see Doc. 14). On April 25, 2025—after attempting to contact Plaintiff no less than three 20 times regarding her failure to respond to discovery requests, (see Doc. 17-3 ¶¶ 10–14, see also Docs. 21 17-6, 17-7, 17-8))—Defendant filed two motions to compel Plaintiff’s responses to written 22 discovery and appearance at a deposition. (Docs. 16, 17). Plaintiff did not timely respond. 23 On May 14, 2025, an order issued for Plaintiff to show cause (“OSC”) and to respond by 24 May 26, 2025. (See Doc. 19). The OSC expressly warned Plaintiff that failure to comply with the 25 Court’s order would “be deemed a waiver of any opposition to the granting of the motion and may 26 result in the imposition of sanctions, up to an including a recommendation that this case be dismissed 27 for failure to prosecute.” (Id. at 2). Plaintiff has not yet filed any response, and the time to do so 28 has passed. 1 II. ANALYSIS 2 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide, “[f]ailure of counsel or of 3 a party to comply with . . . any order of the Court may be grounds for the imposition by the Court 4 of any and all sanctions . . . within the inherent power of the Court.” E.D. Cal. Local Rule 110; see 5 also E.D. Cal. Local Rule 183(a). “District courts have inherent power to control their dockets,” 6 and in exercising that power, a court may impose sanctions, including dismissal of an action. 7 Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may 8 dismiss an action, with prejudice, based on a party’s failure to prosecute an action or failure to obey 9 a court order, or failure to comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 10 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of 11 complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure 12 to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal 13 for failure to prosecute and to comply with local rules). 14 In determining whether to dismiss a claim for failure to prosecute or failure to comply with 15 a court order, the Court must weigh the following factors: (1) the public’s interest in expeditious 16 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 17 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy 18 favoring disposition of cases on their merits. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th 19 Cir. 1992). 20 Considering these factors in light of Plaintiff’s repeated failure to participate in the 21 prosecution of their case, the undersigned finds that all factors weigh in favor of dismissal. See 22 Cooksie v. Pac., Gas & Elec. Co., No. 2:12-CV-1445 LKK AC, 2013 WL 3872829, at *3 (E.D. Cal. 23 July 25, 2013) (“By refusing to participate in discovery throughout the discovery period, and by 24 failing to oppose the instant motion and appear at today's hearing, plaintiff has violated the discovery 25 rules and the orders of this court and has failed to prosecute her lawsuit. In light of the plaintiff's 26 conduct, the court agrees with the defendants that all factors weigh in favor of dismissal.”). 27 A. Expeditious resolution of litigation 28 Orderly and expeditious resolution of disputes serves the public interest and “is of 1 great importance to the rule of law.” In re PPA Products Liability Litigation, 460 F.3d 1217, 1227 2 (9th Cir. 2006). Plaintiff has disregarded the public's interest by refusing to participate in discovery. 3 (See Docs. 17-6, 17-7, 17-8). Her non-compliance will necessarily prolong the litigation, without 4 any showing of cause for the delay. 5 B. Court’s Need to Manage its Docket 6 Plaintiff’s past conduct demonstrates disregard for the court’s resources and the need 7 for orderly case management. In light of Plaintiff’s past conduct, the undersigned concludes that 8 continued litigation would likely result in continued non-compliance, wasteful pretrial activities, 9 and the pointless expenditure of judicial resources. See In re PPA Products, 460 F.3d at 1227 10 (discussing circumstances related to docket management that support dismissal for discovery 11 noncompliance and failure to prosecute). 12 C. Risk of Prejudice to Defendant 13 “A defendant suffers prejudice if the plaintiff's actions impair the defendant’s ability 14 to go to trial or threaten to interfere with the rightful decision of the case.” Adriana Int’l Corp. v. 15 Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990). Failure to appear at deposition and to produce 16 documents constitutes prejudice. Id. Moreover, the law presumes prejudice from undue delay. In 17 re PPA Products, 460 F.3d at 1227. If the plaintiff proffers a non-frivolous excuse for delay, the 18 burden shifts to defendant to demonstrate actual prejudice. Id. at 1228. Here, Plaintiff has offered 19 no excuse for failing to comply with her discovery obligations within the time frame established by 20 the scheduling order. Defendant has already born costs of time and money in preparing the motions 21 to compel. Without any responses to discovery, Defendant cannot adequately defend themselves in 22 this action. Accordingly, Plaintiff’s actions impair Defendant’s ability to go to trial and to obtain 23 rightful decision of the case. Prejudice on these facts is both presumed and actual. 24 D. Disposition on the Merits 25 Although the policy favoring disposition of a case on its merits counsels against 26 dismissal, “a case that is stalled or unreasonably delayed by a party's failure to comply with 27 deadlines and discovery obligations cannot move forward toward resolution on the merits.” In re 28 PPA Products, 460 F.3d at 1227. Accordingly, this factor does not protect from terminal sanctions 1 “a party whose responsibility it is to move a case toward disposition on the merits but whose conduct 2 impedes progress in that direction.” Id. Plaintiff’s conduct in this case has seriously impeded 3 progress of the case toward resolution on the merits. The case is presently stalled due to Plaintiff’s 4 failure to participate in discovery and failure to appear. Accordingly, the general desirability of 5 disposition on the merits does not weigh against dismissal here. 6 E. Availability of Less Drastic Sanctions 7 Less drastic sanctions might have been imposed had Plaintiff appeared in opposition 8 to the motion and indicated her willingness to comply with future orders of the court. Her complete 9 failure to appear, however, demonstrates a disregard for the court that would make lesser sanctions 10 futile. The undersigned’s order to show cause, (Doc. 19), put Plaintiff specifically on notice that 11 dismissal was a present possibility. In re PPA Products, 460 F.3d at 1228–29 (although a prior 12 warning is not always required, “we focus more closely on the lack of warning and absence of 13 consideration of less drastic alternatives when the dismissal is sua sponte rather than in response to 14 a noticed motion.”). Plaintiff failed to respond to duly-served discovery requests, three letters from 15 Defendant requesting responses to discovery, Defendant’s motion, and this Court’s order to show 16 cause. The undersigned has considered evidentiary, issue, and monetary sanctions but concludes in 17 light of the entire history of this case that no sanction short of dismissal would be effective. See 18 Adriana, 913 F.2d at 1411–12 (in evaluating the propriety and severity of sanctions, the court may 19 consider all instances of a party’s misconduct). 20 III. CONCLUSION AND RECOMMENDATION 21 Because all factors weigh in favor of dismissal, it is HEREBY RECOMMENDED that this 22 action be dismissed with prejudice for Plaintiff’s failure to obey court orders and failure to prosecute 23 this action. See Lucero v. Pennella, No. 118CV01448NONESAB, 2020 WL 6798059, at *6 (E.D. 24 Cal. Nov. 19, 2020) (recommending dismissal with prejudice where most factors weighed in favor 25 of dismissal), report and recommendation adopted, No. 118CV01448NONESAB, 2021 WL 24708 26 (E.D. Cal. Jan. 4, 2021). 27 These Findings and Recommendation will be submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l)(B). Within twenty-one 1 (21) days after being served with these Findings and Recommendation, Plaintiff may file written 2 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 3 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 4 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 5 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 The Court DIRECTS the Clerk of Court to send a copy of this Order to Plaintiff at his address 7 listed on the docket for this matter. 8 IT IS SO ORDERED. 9
10 Dated: May 30, 2025 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 11
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