1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT TANNER, Case No. 2:24-cv-3664-DJC-CSK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS

TO DISMISS FOR FAILURE TO

13 v. PROSECUTE 14 SOUTHERN GLAZER’S WINE AND

SPIRITS, LLC,

15 Defendant. 16 17 Plaintiff Robert Tanner, proceeding without the aid of counsel, filed this action in 18 San Joaquin County Superior Court on November 22, 2024.1 Compl. (ECF No. 1, Exh. 19 1). On December 20, 2024, Defendant Southern Glazer’s Wine and Spirits, LLC 20 removed this action to this Court. Removal (ECF No. 1). On January 3, 2025, Defendant 21 filed a motion to dismiss (ECF No. 3) and on January 13, 2025, Plaintiff filed a motion to 22 remand (ECF No. 10). The Court issued Findings and Recommendations on May 21, 23 2025 recommending denying Plaintiff’s motion to remand, granting Defendant’s motion 24 to dismiss, and granting Plaintiff thirty (30) days of any order adopting the Findings and 25 Recommendations to file an amended complaint. 5/21/2025 Findings and 26 Recommendations (ECF No. 22). On June 25, 2025, the district judge adopted the May 27 1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R. 28 Civ. P. 72, and Local Rule 302(c)(21). 1 21, 2025 Findings and Recommendations in full and granted Plaintiff thirty (30) days to 2 file an amended complaint. 6/25/2025 Order (ECF No. 23). Plaintiff was also warned that 3 failure to file an amended complaint within the required deadline would result in 4 dismissal of this action. Id. at 2. Plaintiff did not respond. See Docket. On August 8, 5 2025, the Court issued an Order to Show Cause ordering Plaintiff to respond and file an 6 amended complaint and pay the filing fee within twenty-one (21) days. 8/8/2025 Order at 7 2 (ECF No. 24). The deadline has now passed without any response from Plaintiff to the 8 Order to Show Cause. See Docket. Accordingly, the Court recommends dismissal of this 9 action for failure to prosecute. 10 I. LEGAL STANDARDS 11 Under Federal Rule of Civil Procedure 41, a court may dismiss an action for 12 failure to prosecute or failure to comply with the Federal Rules of Civil Procedure, the 13 court’s local rules, or any order of the court. Fed. R. Civ. P. 41(b); see also Ghazali v. 14 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (approving dismissal under Rule 41(b) for a party’s 15 failure to follow the district court’s local rules). This court’s Local Rules are in accord. 16 See E.D. Cal. Local Rule 110 (“Failure of counsel or of a party to comply with these 17 Rules or with any order of the Court may be grounds for imposition by the Court of any 18 and all sanctions authorized by statute or Rule or within the inherent power of the 19 Court.”); E.D. Cal. Local Rule 183(a) (providing that a pro se party’s failure to comply 20 with the federal rules, local rules, or other applicable law may support dismissal of that 21 party’s action). The court may act on its own accord in exercising this authority. Hells 22 Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) 23 (approving sua sponte dismissals under Rule 41(b)). 24 The Ninth Circuit has found the following factors relevant in determining whether a 25 case should be dismissed under Rule 41(b): (1) the public’s interest in expeditious resolution of litigation; 26 (2) the court’s need to manage its docket; 27 (3) the risk of prejudice to the defendant(s); (4) the availability of less drastic alternatives; and 28 (5) the public policy favoring disposition of cases on their merits. 1 Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890 (9th Cir. 2019). 2

II. DISCUSSION

3 Applying the factors for involuntary dismissal, the Court finds this action should be 4 dismissed. See Applied Underwriters, 913 F.3d at 890. The first two factors weigh in 5 favor of dismissal because the public has a strong interest in expeditious resolution of 6 litigation, and Plaintiff has failed to take the steps necessary to move this case forward. 7 In addition, this district court in particular has a strong need and interest in managing its 8 docket given the extremely high caseload in the Eastern District of California. While the 9 risk of prejudice to Defendant is somewhat minimal, there is some prejudice given the 10 impact on resources of stale litigation. 11 As to the fourth factor, the Court has already tried less drastic alternatives. 12 Specifically, Plaintiff previously missed the deadline to file an amended complaint and 13 was given an opportunity to explain this failure. 8/8/2025 Order. Despite this, Plaintiff has 14 failed to respond to the Order to Show Cause, file an amended complaint, or participate 15 in this litigation, leaving the Court with little alternative but to recommend dismissal. 16 Finally, as to the public policy favoring disposition of cases on their merits, that 17 factor is outweighed here. Indeed, it is Plaintiff’s own failure to prosecute the case and 18 comply with the rules that precludes a resolution on the merits. 19 Therefore, after careful consideration, the Court concludes dismissal for failure to 20 prosecute is appropriate. See Hells Canyon, 403 F.3d at 689 (approving court’s sua 21 sponte dismissal under Rule 41(b) for a plaintiff’s failure to prosecute or comply with the 22 Federal Rules of Civil Procedure or the court’s orders). 23

RECOMMENDATIONS

24 Accordingly, IT IS HEREBY RECOMMENDED that: 25 1. Plaintiff’s action be DISMISSED; and 26 2. The Clerk of Court be directed to CLOSE this case. 27 These findings and recommendations are submitted to the United States District Judge 28 1 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 2 | after being served with these findings and recommendations, any party may file written 3 || objections with the Court and serve a copy on all parties. This document should be 4 | captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply 5 || to the objections shall be served on all parties and filed with the Court within 14 days 6 | after service of the objections. Failure to file objections within the specified time may 7 || waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 8 | (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 9 10 | Dated: September 8, 2025 C ii $ \U 11 CHI SOO KIM 42 UNITED STATES MAGISTRATE JUDGE 13 || 4, robi2795.24 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28