Ortiz v. In the Matter of the Temporary Guardianship of the Person

E.D. California

Ortiz v. In the Matter of the Temporary Guardianship of the Person

DecidedAugust 4, 2023

Docket1:23-cv-00860

StatusUnknown

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Ortiz v. In the Matter of the Temporary Guardianship of the Person, (E.D. Cal. 2023).

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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 ELENA ORTIZ, Case No. 1:23-cv-00860-JLT-SAB

12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION 13 v. FOR FAILURE TO COMPLY WITH COURT ORDER FAILURE TO 14 IN THE MATTER OF THE TEMPORARY PROSECUTE AND FAILURE TO PAY GUARDIANSHIP OF THE PERSON, FILING FEE 15 Defendant. (ECF No. 3) 16 OBJECTIONS DUE WITHIN FOURTEEN 17 DAYS

18 19 Elena Ortiz (“Plaintiff”), proceeding pro se, removed this action from state court on June 20 6, 2023. (ECF No. 1.) On June 7, 2023, the Court denied Plaintiff’s application to proceed in 21 forma pauperis, and ordered Plaintiff to file a long form application to proceed in forma 22 pauperis, or pay the filing fee. (ECF No. 3.) Plaintiff has not filed the long form application nor 23 paid the filing fee by the deadline to do so. 24 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 25 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 26 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to 27 control its docket and may, in the exercise of that power, impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 1 2000); Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010). 2 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 3 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 4 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 5 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 6 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 7 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 8 United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 9 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 10 of prosecution and failure to comply with local rules). 11 In determining whether to dismiss an action for failure to comply with a pretrial order, 12 the Court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the 13 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 14 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 15 sanctions.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 16 (9th Cir. 2006); Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 17 1986). These factors guide a court in deciding what to do, and are not conditions that must be 18 met in order for a court to take action. In re Phenylpropanolamine (PPA) Products Liability 19 Litigation, 460 F.3d at 1226. 20 In this instance the public’s interest in expeditious resolution of the litigation and the 21 Court’s need to manage its docket weigh in favor of dismissal. Id. Plaintiff has not filed the 22 long form application to proceed in forma pauperis, paid the filing fee, nor otherwise responded 23 to the Court’s order. Plaintiff’s failure to comply with the orders of the Court hinders the Court’s 24 ability to move this action towards disposition, and indicates that Plaintiff does not intend to 25 diligently litigate this action. 26 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 27 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 1 dismissal. 2 The public policy in favor of deciding cases on their merits is outweighed by the factors 3 in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. This action can 4 proceed no further without Plaintiff’s cooperation and compliance with the order at issue, and the 5 action cannot simply remain idle on the Court’s docket, unprosecuted. In this instance, the 6 fourth factor does not outweigh Plaintiff’s failure to comply with the Court’s orders. 7 Finally, a court’s warning to a party that their failure to obey the court’s order will result 8 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 9 Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s June 7, 2023, order expressly 10 stated: “If Plaintiff fails to comply with this order, this action shall be dismissed.” (ECF No. 3 at 11 2.) Thus, Plaintiff had adequate warning that dismissal of this action would result from 12 noncompliance with the Court’s order. Further, Plaintiff may still file the long form application 13 to proceed in forma pauperis during the objection period and the Court will consider the 14 application. 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 1 Accordingly, IT IS HEREBY RECOMMENDED that this action be DISMISSED for 2 | Plaintiffs failure to pay the filing fee or file a long form application to proceed in forma 3 | pauperis in this action, failure to abide by the Court’s order, and failure to prosecute. 4 These findings and recommendations are submitted to the district judge assigned to this 5 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 6 | (14) days of service of this recommendation, Plaintiff may file written objections to this findings 7 | and recommendations with the court. Such a document should be captioned “Objections to 8 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the 9 | magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 10 | Plaintiff is advised that failure to file objections within the specified time may result in the 11 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 12 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 14 IT IS SO ORDERED. DAM Le 15 | Dated: _ August 3, 2023 _ ee 16 UNITED STATES MAGISTRATE JUDGE

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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 ELENA ORTIZ, Case No. 1:23-cv-00860-JLT-SAB

12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION 13 v. FOR FAILURE TO COMPLY WITH COURT ORDER FAILURE TO 14 IN THE MATTER OF THE TEMPORARY PROSECUTE AND FAILURE TO PAY GUARDIANSHIP OF THE PERSON, FILING FEE 15 Defendant. (ECF No. 3) 16 OBJECTIONS DUE WITHIN FOURTEEN 17 DAYS

18 19 Elena Ortiz (“Plaintiff”), proceeding pro se, removed this action from state court on June 20 6, 2023. (ECF No. 1.) On June 7, 2023, the Court denied Plaintiff’s application to proceed in 21 forma pauperis, and ordered Plaintiff to file a long form application to proceed in forma 22 pauperis, or pay the filing fee. (ECF No. 3.) Plaintiff has not filed the long form application nor 23 paid the filing fee by the deadline to do so. 24 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 25 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 26 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to 27 control its docket and may, in the exercise of that power, impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 1 2000); Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010). 2 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 3 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 4 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 5 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 6 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 7 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 8 United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 9 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 10 of prosecution and failure to comply with local rules). 11 In determining whether to dismiss an action for failure to comply with a pretrial order, 12 the Court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the 13 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 14 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 15 sanctions.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 16 (9th Cir. 2006); Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 17 1986). These factors guide a court in deciding what to do, and are not conditions that must be 18 met in order for a court to take action. In re Phenylpropanolamine (PPA) Products Liability 19 Litigation, 460 F.3d at 1226. 20 In this instance the public’s interest in expeditious resolution of the litigation and the 21 Court’s need to manage its docket weigh in favor of dismissal. Id. Plaintiff has not filed the 22 long form application to proceed in forma pauperis, paid the filing fee, nor otherwise responded 23 to the Court’s order. Plaintiff’s failure to comply with the orders of the Court hinders the Court’s 24 ability to move this action towards disposition, and indicates that Plaintiff does not intend to 25 diligently litigate this action. 26 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 27 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 1 dismissal. 2 The public policy in favor of deciding cases on their merits is outweighed by the factors 3 in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. This action can 4 proceed no further without Plaintiff’s cooperation and compliance with the order at issue, and the 5 action cannot simply remain idle on the Court’s docket, unprosecuted. In this instance, the 6 fourth factor does not outweigh Plaintiff’s failure to comply with the Court’s orders. 7 Finally, a court’s warning to a party that their failure to obey the court’s order will result 8 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 9 Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s June 7, 2023, order expressly 10 stated: “If Plaintiff fails to comply with this order, this action shall be dismissed.” (ECF No. 3 at 11 2.) Thus, Plaintiff had adequate warning that dismissal of this action would result from 12 noncompliance with the Court’s order. Further, Plaintiff may still file the long form application 13 to proceed in forma pauperis during the objection period and the Court will consider the 14 application. 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 1 Accordingly, IT IS HEREBY RECOMMENDED that this action be DISMISSED for 2 | Plaintiffs failure to pay the filing fee or file a long form application to proceed in forma 3 | pauperis in this action, failure to abide by the Court’s order, and failure to prosecute. 4 These findings and recommendations are submitted to the district judge assigned to this 5 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 6 | (14) days of service of this recommendation, Plaintiff may file written objections to this findings 7 | and recommendations with the court. Such a document should be captioned “Objections to 8 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the 9 | magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 10 | Plaintiff is advised that failure to file objections within the specified time may result in the 11 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 12 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 14 IT IS SO ORDERED. DAM Le 15 | Dated: _ August 3, 2023 _ ee 16 UNITED STATES MAGISTRATE JUDGE

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In Re Phenylpropanolamine (Ppa) Products Liability Litigation, Shantell Allen, on Behalf of Allen, Vera v. Bayer Corporation, Leon Anderson, Jr. v. Bayer Corporation, Leslie Ackel v. Bayer Corporation, Bridgett Arrington v. Bayer Corporation, Calvin McGriggs v. Delaco Company, Betty Clinton v. Delaco Company, Donna Sasseen v. Ide Interstate Inc., Elizabeth Page v. Bayer Corporation, Marie Riley v. Wyeth, Obo Itself and Its Unincorporated Division, Wyeth Consumer Healthcare, Fka Whitehall-Robins Healthcare Formerly Known as American Home Products Corporation, and Keva K. Alford, on Behalf of All Wrongful Death Beneficiaries of Henry Dexter, and Eddie Bullock v. Wyeth, Obo Itself and Its Unincorporated Division, Wyeth Consumer Healthcare, Fka Whitehall-Robins Healthcare Formerly Known as American Home Products Corporation, and Novartis Pharmaceuticals Corporation, Bobby Holmes v. Bayer Corporation, Melody McDaniel v. Wal-Mart Stores, Inc., Samantha Samuels v. Bayer Corporation

460 F.3d 1217 (Ninth Circuit, 2006)

J. Wilkerson v. B. Wheeler

772 F.3d 834 (Ninth Circuit, 2014)

Bautista v. Los Angeles County

216 F.3d 837 (Ninth Circuit, 2000)

Henderson v. Duncan

779 F.2d 1421 (Ninth Circuit, 1986)

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