Opinion
CV 22-3093 PA (JCx)
11-28-2022
Crystal Redick v. Charlies Trio Cafe, LP, et al.
CIVIL MINUTES - GENERAL
PROCEEDINGS: IN CHAMBERS - COURT ORDER
PRESENT THE HONORABLE PERCY ANDERSON, DISTRICT JUDGE
Plaintiff Crystal Redick (“Plaintiff”) filed her complaint on May 6, 2022, asserting claims against defendant Charlies Trio Cafe, LP (“Defendant”). On September 21, 2022, the Court ordered Plaintiff to show cause why this action should not be dismissed for lack of prosecution after Defendant failed to file an answer within 21 days after service. (Docket No. 22.) The parties then filed a joint stipulation extending the time for Defendant to answer to October 19, 2022. (Docket No. 23.) On October 19, 2022, Plaintiff filed a Notice of Settlement. (Docket No. 25.) That same day, the Court ordered the parties to file a dismissal or to appear to place the settlement on the record within ten (10) days. (Docket No. 26.) The Court's Order warned the parties that if they did not dismiss the action or did not place the settlement on the record, the matter would remain on the Court's active trial calendar with all pretrial and trial dates in effect. (Id.) After the expiration of ten days without activity by the parties, on October 31, 2022, the Court again ordered Plaintiff to show cause, on or before November 7, 2022, why the action should not be dismissed for lack of prosecution. (Docket No. 28.) The parties filed a joint response, requesting additional time to file a dismissal by December 5, 2022. (Docket No. 29.) The Court denied the request. (Docket No. 30.)
To date, and despite the passage of time, the parties have not prosecuted the action. The parties did not file a dismissal or arrange to place the settlement on the record within the deadline established by the Court. Nor did Defendant file a response to the Complaint within its deadline to do so.
The Court may dismiss with prejudice an action sua sponte if “the plaintiff fails to prosecute or to comply with the [Federal Rules of Civil Procedure] or a court order.” See Fed.R.Civ.P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734 (1962) (dismissal for failure to prosecute); Yourish v. Cal. Amplifier, 191 F.3d 983, 987-88 (9th Cir. 1999) (dismissal for failure to comply with court order). This inherent power supports the orderly and expeditious disposition of cases. See Link, 370 U.S. at 629-30, 82 S.Ct. 1386, 8 L.Ed.2d 734; Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); Yourish, 191 F.3d at 987-88.
In Henderson v. Duncan, the Ninth Circuit set forth five factors for a district court to consider before resorting to the penalty of dismissal: “(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.” 779 F.2d 1421, 1423 (9th Cir. 1986). Dismissal is appropriate “where at least four factors support dismissal, or where at least three factors ‘strongly' support dismissal.” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (internal citations omitted) (citing Ferdik, 963 F.2d at 1263). Cases involving sua sponte dismissal merit special focus on the fifth Henderson factor. Id.
Here, in assessing the first Henderson factor, the public's interest in expeditious resolution of litigation will be satisfied by a dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Yourish, 191 F.3d at 990 (public's interest in expeditious resolution of litigation always favors dismissal)). Relatedly, with respect to the second factor, the Court's need to manage its docket will be served by dismissal. See id. The third Henderson factor of prejudice to the defendant is neutral, as continued pendency of a case alone is insufficient to find prejudice. See Yourish, 191 F.3d at 991.
In considering the fourth and fifth Henderson factors, the Court notes that both Plaintiff and Defendant were warned about the consequences of failing to dismiss the action or failing to place the settlement on the record. Nevertheless, neither party has taken action. It therefore appears that Plaintiff has abandoned efforts to prosecute this action. Additionally, the Court intends to dismiss the claims against Defendant without prejudice. Accordingly, the fifth Henderson factor favors dismissal because the Court has adopted the “less-drastic” sanction of dismissal without prejudice. See McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996) (district court should first consider less drastic alternatives to dismissal with prejudice).
The Court finds that the Henderson factors weigh in favor of dismissing this action. Accordingly, the Court dismisses Plaintiff's action without prejudice for lack of prosecution. See Fed.R.Civ.P. 41(b); see also Yourish, 191 F.3d at 986-88; Ferdik, 963 F.2d at 1260.
IT IS SO ORDERED.