McBryde v. 1-800-PACK-RAT, LLC

Summary

The United States District Court for the Eastern District of California recommends dismissing Tiffany McBryde’s action against 1-800-Pack-Rat, LLC for failure to prosecute under Federal Rule of Civil Procedure 41(b). The recommendation follows Plaintiff’s failure to oppose Defendant’s motion to dismiss or respond to an order to show cause. The Court vacates the scheduled hearing and recommends denying the motion to dismiss as moot and closing the case.

Holdings

1. A court may dismiss an action sua sponte under Federal Rule of Civil Procedure 41(b) when a party fails to prosecute the action or comply with the Federal Rules of Civil Procedure, local rules, or a court order. Applying the Ninth Circuit's five-factor test, dismissal was appropriate because plaintiff failed to participate in the litigation despite notice and an opportunity to respond.
2. Defendant's motion to dismiss should be denied as moot because the action should instead be dismissed for plaintiff's failure to prosecute.

Questions Presented

1. Whether the action should be dismissed sua sponte for plaintiff's failure to prosecute and failure to comply with the Federal Rules of Civil Procedure, local rules, and the court's order.
2. Whether defendant's pending motion to dismiss should be denied as moot if the action is dismissed for failure to prosecute.

Disposition

dismissed