Opinion
2:21-01113 SVW (ADS)
12-27-2021
DEMONTREY ANDRE CUNNINGHAM, Plaintiff, v. RAMON PABON, et al., Defendants.
HONORABLE AUTUMN D. SPAETH UNITED STATES MAGISTRATE JUDGE
ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE AND COMPLY WITH COURT ORDERS
HONORABLE STEPHEN V. WILSON UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Plaintiff Demontrey A. Cunningham filed a pro se civil rights complaint (“Complaint”) on June 3, 2020. (Dkt. No. 1.) Defendants Ramon Pabon and Herman Espinoza filed their Answer on May 26, 2021. (Dkt. No. 29.) On June 2, 2021, the Court issued a Case Management and Scheduling Order, which required the parties to file their respective Case Management Reports by August 26, 2021. (Dkt. No. 31.) On September 17, 2021, the Court ordered Plaintiff to show cause why he had failed to submit a Case Management Report. (Dkt. No. 36.) The Court warned Plaintiff that 1 failure to file a response may result in a dismissal of his case pursuant to Federal Rule of Civil Procedure 41(b) (“Rule 41(b)”). (Id.) Plaintiff's response was due October 1, 2021, (id.), but Plaintiff failed to file a response.
Defendants subsequently filed a Request for Dismissal (“Request”) on October 21, 2021. (Dkt. No. 37.) In the Request, Defendants informed the Court that Plaintiff, after consulting with an attorney, desired to voluntarily dismiss the case. (Dkt. No. 37-1, Declaration of N. Grecea ¶ 4.) In light of this information, the Court ordered Plaintiff to file a response informing the Court about whether he had retained counsel and whether he intended to voluntarily dismiss the case. (Dkt. No. 38.) Alternatively, Plaintiff was given the option of filing his Case Management Report to show his intent to continue with his case. (Id.) Plaintiff's response was due November 15, 2021, (id.), but Plaintiff again failed to file a response to this order.
To ascertain why Plaintiff has repeatedly failed to respond to these prior orders, the Court set a telephonic hearing for December 16, 2021. (Dkt. No. 39.) The Court cautioned Plaintiff that failure to attend the hearing will result in a recommendation that his case be dismissed without prejudice pursuant to Rule 41(b). (Id.) On December 16, 2021, Plaintiff failed to appear for the hearing. A review of the docket reflects Plaintiff's last contact with the Court was on April 1, 2021. (Dkt. No. 23.)
II. LEGAL STANDARD
The Court has the inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions pursuant to Rule 41(b) for failure to prosecute and for failure to comply with a court order. See Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962); see also Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002). Five factors are weighed in determining whether to dismiss an action for failure to comply 2 with a court order or failure to prosecute: (1) the public's interest in the expeditious resolution of litigation; (2) the Court's need to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Pagtalunan, 291 F.3d at 642.
III. ANALYSIS
Having weighed the five factors, the Court finds the first, second, third, and fifth factors weigh in favor of dismissing this action. As to the first and second factors, Plaintiff's failure to engage with this case and file a response to the Court's prior orders has interfered with the public's interest in the expeditious resolution of this litigation, as well with the Court's need to manage its docket. See Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“the public's interest in expeditious resolution of litigation always favors dismissal”). As to the third factor, Plaintiff has failed to rebut the presumption that defendants have been prejudiced by this unreasonable delay. Moneymaker v. Coben (In re Eisen), 31 F.3d 1447, 1452-53 (9th Cir. 1994) (“The law presumes injury from unreasonable delay.”) (quoting Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976)). As to the fifth factor, there is no less drastic sanction available as the Court has given Plaintiff ample time to respond to these orders and warned Plaintiff that the case would be dismissed if he did not do so. Accordingly, the Court has taken meaningful steps to explore alternatives to dismissal. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (“The district court need not exhaust every sanction short of dismissal before finally dismissing a case, but must explore possible and meaningful alternatives.”). Finally, although the fourth factor always weighs against dismissal, here Plaintiff's failure to discharge his responsibility to move the case towards a disposition outweighs the public policy favoring disposition on the merits. 3 Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991) ("Although there is indeed a policy favoring disposition on the merits, it is the responsibility of the moving party to move towards that disposition at a reasonable pace, and to refrain from dilatory and evasive tactics.")- Having weighed these factors, the Court finds that dismissal of this action without prejudice is warranted.
IV. CONCLUSION
Accordingly, this action is dismissed without prejudice for failure to prosecute and for failure to obey court orders pursuant to Rule 41(b). Judgment is to be entered accordingly. All pending motions are terminated. (Dkt. No. 37.)
IT IS SO ORDERED. 4