Opinion
No. C-00-0173-VRW.
March 12, 2003
ORDER
On January 14, 2000, plaintiff American Technologies Network Corporation initiated this action against defendants Hi-Tech Optics, Keith Oliver and Does 1 through 100. See Compl. (Doc. #1). While the case was active during 2000, no further filings have been made during the past two years since the parties stipulated to dismiss Oliver on February 13, 2001. See Doc. #12. Because no further filings were made in this case, on February 7, 2003, the court ordered plaintiff to show cause by February 28, 2003, why the action should not be dismissed for failure to prosecute pursuant to F.R.C.P. 41(b). See Doc. #13. In that order, the court specifically warned that failure to respond by February 28, 2003, may result in dismissal of the lawsuit. Id.
A plaintiff has a duty to prosecute its case. See F.R.C.P. 41(b). A court possesses the inherent authority to dismiss an action sua sponte pursuant to F.R.C.P. 41(b) for failure to prosecute "to achieve the orderly and expeditious disposition of cases." Link v. Wabash R. R. Co., 370 U.S. 626, 630-632 (1962); Oliva v. Sullivan, 958 F.2d 272, 273 (9th Cir. 1992). Because dismissal is a harsh penalty, it should be limited as a sanction only in extreme circumstances. Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir.), cert denied, 479 U.S. 829 (1986). The Ninth Circuit has held that a district court must weigh several factors to decide whether to dismiss:
(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 defendants; (4) the public policy favoring disposition of cases on their merits and (5) the availability of less drastic sanctions.Thompson, 782 F.2d at 831. Dismissal is proper "where at least four factors support dismissal, * * * or where at least three factors `strongly' support dismissal." Yourish v. Calif. Amplif., 191 F.3d 983, 990 (9th Cir. 1999) (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992)). Though it is not required that the district court make explicit findings to show it has considered these factors, such findings are "preferred." Id. In addition, prior to dismissing an action sua sponte, a court "has an obligation to warn the plaintiff that dismissal is imminent." Oliva, 958 F.2d at 273.
Here, the court is unaware of any action in the case taken by plaintiff since the stipulation to dismiss individual defendant Keith Oliver. More than two years have passed since plaintiff has taken any further action in the case, including responding to the court's recent order to show cause why the case should not be dismissed due to failure to prosecute.
The court considers the Thompson factors in weighing its decision to dismiss the action for failure to prosecute. The first two factors weigh strongly in favor of dismissal. The public has an interest in resolving disputes expeditiously and in not allowing cases to linger if a plaintiff fails to prosecute. Plaintiff's failure to prosecute and noncompliance with the court's order to show cause "has caused the action to come to a complete halt, thereby allowing Plaintiffs to control the pace of the docket rather than the Court." Yourish v. Calif. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Similarly, the court has a need to manage its docket efficiently and in a manner fair to all parties. Hence, these two factors weigh strongly in favor of dismissal.
While the "mere pendency of a law suit" is not prejudicial enough by itself to warrant dismissal, "unreasonable" delays by the plaintiff may give rise to sufficient grounds to dismiss. Id. at 991 (quoting Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)). In determining whether defendant was sufficiently prejudiced by plaintiff's delays, the court considers "the strength of the plaintiff's excuse for the default." Id. Here, plaintiff has provided no explanation to the court regarding its failure to prosecute and indeed has not responded to the court's order to show cause. The court therefore finds that defendant is sufficiently prejudiced by plaintiff's continued and unexplained failure to prosecute as to support dismissal. Hence, the third factor also weighs strongly in favor of dismissal.
In considering the fourth factor, the court notes that, even if this case were not dismissed, it does not believe that the case would ultimately be resolved on the merits due to plaintiff's demonstrated history of failing to prosecute and comply with the court's orders. This factor, too, weighs in favor of dismissal.
Finally, the court finds that less drastic sanctions would not be appropriate. The court could issue another order to show cause against plaintiff, but it has no reason to believe that plaintiff would respond. As of this date, plaintiff still has not filed any materials with the court. The court finds that less drastic alternatives would be ineffectual.
Because all five factors weigh in favor of dismissal, the court finds that dismissal is an appropriate sanction. Thus, having received no response from plaintiff despite its February 7, 2003, order to show cause (Doc. #13), the court hereby DISMISSES the action without prejudice pursuant to F.R.C.P. 41(b) for failure to prosecute.
The clerk is directed to close the file and terminate all pending motions.
IT IS SO ORDERED.