United States District Court, D. Nevada
REPORT AND RECOMMENDATION
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE.
matter is before the court on pro se plaintiff Junior
Sainvil's failure to comply with the court's order
(ECF No. 16) and order to show cause (ECF No. 18).
November 2, 2018, the court allowed Sainvil's attorney to
withdraw and ordered Sainvil to inform the court in writing
whether he would represent himself for the duration of the
case. (Order (ECF No. 16).) Sainvil's court-ordered
deadline for doing so was November 30, 2018. (Id.)
Sainvil did not comply with the court's order. On January
15, 2019, the court ordered Sainvil to show cause why
sanctions should not be imposed for his failure to comply
with the court's previous order. (OSC (ECF No. 18).) The
court expressly cautioned Sainvil that failure to respond to
the order to show cause by February 11, 2019, would result in
a recommendation that his case be dismissed. (Id.)
This deadline has expired, and Sainvil has not responded to
the order to show cause, requested an extension to do so, or
otherwise responded to the court's orders. Nor has an
attorney appeared on Sainvil's behalf.
purpose of the Federal Rules of Civil Procedure is to
“secure the just, speedy, and inexpensive determination
of every action and proceeding.” Fed.R.Civ.P. 1. The
rules provide several mechanisms that allow courts to
accomplish this goal using sanctions against parties that
fail to comply with court orders or that unnecessarily
multiply proceedings. Federal Rule of Civil Procedure 16 is
the central pretrial rule that authorizes courts to manage
their cases “so that disposition is expedited, wasteful
pretrial activities are discouraged, the quality of the trial
is improved, and settlement is facilitated.” In re
Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217,
1227 (9th Cir. 2006). Specifically, Rule 16(f) “puts
teeth into these objectives by permitting the judge to make
such orders as are just for a party's failure to obey a
scheduling or pretrial order, including dismissal.”
provides in relevant part that “[o]n motion or on its
own, the court may issue any just orders, including those
authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its
attorney . . . fails to obey a scheduling order or other
pretrial order.” Fed.R.Civ.P. 16(f)(1). Potential
sanctions under Rule 37(b)(2)(A) include dismissing the
action. Fed.R.Civ.P. 37(b)(2)(A)(v). In determining whether
to impose the sanction of dismissal, a court must weigh: (1)
the public's interest in expeditious resolution of
litigation; (2) the court's need to manage its docket;
(3) the risk of prejudice to the defendant; (4) public policy
favoring disposition of cases on the merits; and (5)
availability of less drastic sanctions. Wanderer v.
Johnston, 910 F.2d 652, 656 (9th Cir. 1990).
first two factors, the public's interest in expeditiously
resolving this litigation and the court's interest in
managing its docket, weigh in favor of dismissal. See
Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d
829, 831 (9th Cir. 1986) (district courts have the inherent
power to control their dockets and “[i]n the exercise
of that power, they may impose sanctions including, where
appropriate . . . dismissal” of a case). Sainvil's
failure to comply with the court's orders has resulted in
unnecessary delay and has burdened the court's docket.
The third factor, risk of prejudice to the defendant, weighs
in favor of dismissal because Sainvil's repeated failure
to comply with the court's orders have made it impossible
for the case to move forward and impairs defendant's
ability to go to trial and obtain a rightful decision in the
case. See Adriana Int'l Corp. v. Thoeren, 913
F.2d 1406, 1413 (9th Cir. 1990). The court expressly warned
Sainvil of the possibility of dismissal as a sanction for his
failure to comply with the court's orders and there is no
indication he will comply with the court's orders,
thereby satisfying the fifth factor's requirement that
the court consider less drastic alternatives. See Malone
v. U.S. Postal Service, 833 F.2d 128, 131-32 (9th Cir.
1987). The fourth factor, the public policy favoring
disposition of cases on their merits, is outweighed by the
other factors favoring dismissal. As a result, the court will
recommend dismissal of the case.
THEREFORE RECOMMENDED that this case be DISMISSED based on
Sainvil's failure to respond to the court's February
11, 2019, order to show cause.
report and recommendation is submitted to the United States
district judge assigned to this case under 28 U.S.C. §
636(b)(1). A party who objects to this report and
recommendation may file a written objection supported by
points and authorities within fourteen days of being served
with this report and recommendation. Local Rule IB 3-2(a).
Failure to file a timely objection may waive the right to
appeal the district court's order. Martinez v.
Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
 The court's order to show cause
was returned by the United States Post Office as
undeliverable. (ECF No. 19.) Under the court's local
rules, failure to immediately file with the court written
notification of any change of mailing address and other
contact information is an independent basis for dismissal of
the action. See LR IA 3-1; Ghazali v.
Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming
district court's dismissal for noncompliance with local
rule); Carey v. King, 856 F.2d 1439, 1440-41 (9th
Cir. 1988) (affirming ...