Opinion
No. 2:09-cv-1485 KJN P.
April 4, 2011
ORDER
On November 22, 2010, this court found that plaintiff's amended complaint stated potentially cognizable claims for relief, and directed plaintiff to submit the documents necessary to effect service of process on defendants. (Dkt. No. 20.) Plaintiff did not respond. On February 15, 2011, this court directed plaintiff to show cause for his delay, and again accorded plaintiff the opportunity to file the necessary documents. The court informed plaintiff that "[f]ailure to respond to this order will result in the dismissal of this action without prejudice." (Dkt. No. 21, at 2.) Plaintiff did not respond.
Plaintiff has consented to the jurisdiction of the magistrate judge for all purposes. (Dkt. No. 5.) See 28 U.S.C. § 636(c); Local Rule 305(a).
Federal Rule of Civil Procedure Rule 41(b) provides for the involuntary dismissal of an action "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order . . ." Fed.R.Civ.P. 41(b). In addition, Local Rule 110 provides that failure to comply with the Local Rules "may be grounds for imposition of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." E.D. Cal. L.R. 110.
"Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court." Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). "In determining whether to dismiss a case for failure to comply with a court order the district court must weigh five factors including: `(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 alternatives.'"Ferdik, 963 F.2d at 1260-61 (quoting Thompson v. Housing Authority, 782 F.2d 829, 831 (9th Cir. 1986)); see also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995).
This court has considered the five factors set forth in Ferdik. The first two factors strongly support dismissal of this action. Plaintiff's failure to respond to the court's orders suggests that he has abandoned this action, and that further time spent by the court on this case will consume scarce judicial resources on a futile matter. The third factor, prejudice to defendants, also favors dismissal. Because defendants have not been served process, the dismissal of this action will not prejudice defendants. The fourth factor, public policy favoring disposition of cases on their merits, weighs against dismissal of any action as a sanction. However, this factor is outweighed by the other four factors. The fifth factor (no suitable alternative) favors dismissal. The court has advised plaintiff of the requirements for proceeding in this case, and has granted additional time within which to comply, but plaintiff has failed to respond. Therefore, under the circumstances of this case, the general public policy favoring disposition of cases on their merits is outweighed by the factors supporting dismissal. See Ferdik, 963 F.2d at 1263.
Accordingly, for the foregoing reasons, this action is dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b).
DATED: April 1, 2011