Opinion
Case No. SACV 11-901 RNB
11-29-2011
JAMES R. BARKS, et al., Plaintiffs, v. ONEWEST BANK, etc., et al. Defendants.
ORDER DISMISSING ACTION FOR
FAILURE TO PROSECUTE
On September 13, 2011, the Court granted defendant OneWest Bank's Motion to Dismiss First Amended Complaint and set a deadline of October 28, 2011 for plaintiffs to file a Second Amended Complaint.
When, as of November 7, 2011, no Second Amended Complaint had been filed by plaintiffs, the Court issued an Order requiring plaintiffs, on or before November 23, 2011, to either file a Second Amended Complaint or show cause, in writing, why this action should not be dismissed for failure to prosecute.
The November 23, 2011 deadline now has passed without plaintiffs filing either a Second Amended Complaint or a response to the Order to Show Cause.
Plaintiffs' failure to file a Second Amended Complaint or a response to the Order to Show Cause evidences a lack of prosecution on their part. The Court has inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute. See Link v. Wabash R.R., 370 U.S. 626, 629-30, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962); Federal Rule of Civil Procedure 41(b).
In Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988), the Ninth Circuit cited the following factors as relevant to the Court's determination whether to dismiss an action for failure to prosecute: "(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."
Here, the Court finds that the first and second Carey factors militate strongly in favor of dismissal. As a result of plaintiffs' failure to file a Second Amended Complaint, this action essentially has been and will continue to be stalemated. The Court further finds that the fifth Carey factor militates in favor of dismissal since the Court is unaware of any less drastic sanctions that the Court could impose to induce plaintiffs to file a Second Amended Complaint. Finally, even if the third and fourth Carey factors do not militate in favor of dismissal, the Court finds based on its familiarity with plaintiffs' claims from its consideration of plaintiffs' preliminary injunction motion that the three other Carey factors in this instance outweigh the third and fourth factors.
IT THEREFORE IS ORDERED that this action is dismissed for failure to prosecute.
LET JUDGMENT BE ENTERED ACCORDINGLY.
ROBERT N. BLOCK
UNITED STATES MAGISTRATE JUDGE