Miguel Melena v. Opteum Financial Services LLC et al

Filing 11

ORDER DISMISSING CASE by Judge A. Howard Matz, re Minutes of In Chambers Order to show Cause 10 : Plaintiff has not complied with the OSC. Case Terminated. Made JS-6. (se)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MIGUEL MELENA,

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Plaintiff(s),
v.
OPTEUM FINANCIAL SERVICES,
LLC, et al.,

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Defendant(s).

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CV11-00747-AHM (MANx)
ORDER OF DISMISSAL FOR FAILURE TO
PROSECUTE

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On June 8, 2011, the Court ordered plaintiff to show cause in writing, no later
than June 22, 2011, why the above-entitled action should not be dismissed as to all
remaining defendants for lack of prosecution. To date, plaintiff has not complied
with this order.
Five factors must be considered before imposing the sanction 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.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). Dismissal is
warranted “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,
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399 (9th 1998). While preferred, it is not required that a district court make explicit

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findings regarding the five factors. Yourish v. California Amplifier, 191 F.3d 983,

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990 (9th Cir. 1999).
The Court hereby finds that dismissal is warranted under the facts of this case.

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Public interest in expediency and management of the Court’s docket both support

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dismissal. The Court’s docket is very extensive and cannot be managed efficiently

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and expeditiously if parties fail to comply with court orders. The risk of prejudice to

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the defendants weigh in favor of dismissal, as plaintiff’s action has caused defendants

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to wait unnecessarily “in limbo” and to expend further time and money to monitor the

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action. Less drastic sanctions are not warranted, given that Plaintiff received notice

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of the potential of dismissal should Plaintiff fail to timely serve the summons and

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complaint. While public policy would favor a disposition on the merits, at least four

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of the factors (factors 1, 2, 3, and 5) support dismissal here. Thus, dismissal is

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warranted. See Hernandez, 138 F.3d at 399.
Accordingly, good cause appearing therefor, the Court hereby DISMISSES this

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action pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and

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failure to obey an order of this Court. The Clerk of the Court is directed to close the

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file.
IT IS SO ORDERED.

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Dated: July 14, 2011

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JS-6

A. HOWARD MATZ
United States District Judge

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