1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JESSE NIETO, JR., No. 2:20-cv-00422-JAM-JDP (PS) 12 Plaintiff, ORDER VACATING NOVEMBER 4, 2021

INITIAL SCHEDULING CONFERENCE

13 v.

FINDINGS AND RECOMMENDATIONS

14 CALIBER HOME LOANS, et al., THAT THIS CASE BE DISMISSED FOR

PLAINTIFF’S FAILURES TO PROSECUTE

15 Defendants. AND TO COMPLY WITH COURT ORDERS 16 OBJECTIONS DUE WITHIN 14 DAYS 17 18 This matter is before the court because of plaintiff’s repeated failures to prosecute and 19 comply with court orders. On July 30, the court issued its first order to show cause against 20 plaintiff for failure to comply with a court order. ECF No. 24. The then-assigned magistrate 21 judge recommended dismissal on August 19, 2020. ECF No. 25. On September 2, 2020, plaintiff 22 objected to that recommendation, ECF No. 27, and the court gave plaintiff another opportunity to 23 prosecute, ECF No. 29. On October 15, 2020, the court held an initial scheduling conference and 24 plaintiff failed to appear. ECF No. 33. 25 On September 1, 2021, the court issued an order resetting the initial scheduling conference 26 for September 30, 2021 and directing the parties to file a joint status report seven days prior. ECF 27 No. 43. Defendants timely filed a status report. ECF No. 44. Plaintiff, however, failed to 28 1 separately file his own status report or join in defendant’s filing. On September 28, 2021, the 2 court moved the initial scheduling conference and ordered plaintiff to show cause why sanctions 3 should not be imposed for his failure to comply with the court’s order. ECF No. 45. Plaintiff has 4 not responded to the court’s order to show cause and the time to do so has passed. 5 To manage its docket effectively, the court imposes deadlines on litigants and requires 6 litigants to meet those deadlines. The court may dismiss a case for plaintiff’s failure to prosecute 7 or failure to comply with a court order. See Fed. R. Civ. P. 41(b); Hells Canyon Pres. Council v. 8 U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005). Involuntary dismissal is a harsh penalty, but 9 a district court has a duty to administer justice expeditiously and avoid needless burden for the 10 parties. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Fed. R. Civ. P. 1. 11 In considering whether to dismiss the case for failure to prosecute, a court ordinarily 12 considers five factors: “(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 policy 14 favoring disposition of cases on their merits and (5) the availability of less drastic sanctions.” 15 Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 16 F.2d 1421, 1423 (9th Cir.1986)). These heuristic factors merely guide the court’s inquiry; they 17 are not conditions precedent for dismissal. See In re Phenylpropanolamine (PPA) Products 18 Liability Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). 19 “The public’s interest in expeditious resolution of litigation always favors dismissal.” 20 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting Yourish v. California 21 Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this factor weighs in favor of 22 dismissal. 23 Turning to the risk of prejudice, pendency of a lawsuit, on its own, is not sufficiently 24 prejudicial to warrant dismissal. Id. (citing Yourish, 191 F.3d at 991). However, delay inherently 25 increases the risk that witnesses’ memories will fade and evidence will become stale, id. at 643, 26 and it is plaintiff’s failure to prosecute this case that is causing delay. Therefore, the third factor 27 weighs in favor of dismissal. 28 1 As for the availability of lesser sanctions, at this stage in the proceedings there is little 2 | available to the court that would constitute a satisfactory lesser sanction while protecting the court 3 | from further unnecessary expenditure of its scarce resources. Monetary sanctions are of little use, 4 | considering plaintiff's repeated violations of court orders, and the preclusion of evidence or 5 | witnesses is not available. While dismissal is a harsh sanction, no lesser sanction is available. 6 Finally, because public policy favors disposition on the merits, this factor weighs against 7 | dismissal. Jd. 8 After weighing the factors, including the court’s need to manage its docket, the court finds 9 | dismissal appropriate. The court will recommend dismissal without prejudice. 10 Order 11 The initial scheduling conference set for November 4, 2021 is vacated. 12 Findings and Recommendations 13 Accordingly, I recommend that the case be dismissed without prejudice for plaintiff's 14 | failures to prosecute and to comply with court orders. 15 I submit these findings and recommendations to the U.S. district judge presiding over the 16 | case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the service of 17 | the findings and recommendations, the parties may file written objections to the findings and 18 | recommendations with the court and serve a copy on all parties. The document containing the 19 | objections must be captioned “Objections to Magistrate Judge’s Findings and 20 | Recommendations.” The presiding district judge will then review the findings and 21 | recommendations under 28 U.S.C. § 636(b)(1)(C). 22 73 IT IS SO ORDERED. 24 ( q Sty — Dated: _ October 20, 2021 Q_-——_ 25 JEREMY D,. PETERSON 26 UNITED STATES MAGISTRATE JUDGE

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