Peggy Robinson v. Derrick John Toole
ORDER DISMISSING CASE FOR LACK OF PROSECUTION 9 by Judge Otis D. Wright, II: the action is DISMISSED WITHOUT PREJUDICE for failure to prosecute and failure to comply with court rules and orders.Case Terminated. Made JS-6. (jre)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No. 2:13-cv-5111-ODW(RZx)
ORDER DISMISSING CASE FOR
LACK OF PROSECUTION
DERRICK JOHN TOOLE,
On August 7, 2013, the Court issued its Order to Show Cause why this case
should not be dismissed for failure to prosecute. (ECF No. 9.) Based on Plaintiff
Peggy Robinson’s Proof of Service, Defendant Derrick John Toole’s answer to the
Complaint was due August 7, 2013. (ECF No. 8.) To date, Toole has not filed an
answer in this case.
But in response to the Order to Show Cause, instead of filing a request for entry
of default or a statement of reasons demonstrating good cause for the failure to
prosecute, Robinson filed a stipulation to extend time under Local Rule 8-3. This
stipulation is not responsive to the Court’s Order to Show Cause.
Federal courts are empowered to administer the “just, speedy, and inexpensive
determination of every action and proceeding.” Fed. R. Civ. P. 1. With such a
mandate, courts may dismiss an action for failure to prosecute or to comply with rules
and orders under Federal Rule of Civil Procedure 41(b). See Pagtalunan v. Galaza,
291 F.3d 639, 642–43 (9th Cir. 2002) (“In determining whether to dismiss a claim for
failure to prosecute or failure to comply with a court order, the Court must weigh the
following factors: (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
defendants/respondents; (4) the availability of less drastic alternatives; and (5) the
public policy favoring disposition of cases on their merits.”); Yourish v. Cal.
Amplifier, 191 F.3d 983, 989–92 (9th Cir. 1999) (explaining the factors supporting
dismissal with prejudice for failure to prosecute).
Not only is Robinson’s stipulation to extend time an improper response to the
Order to Show Cause, the stipulation was improperly filed. Logic dictates that a Rule
8-3 stipulation must be filed prior to the initial deadline to answer a complaint, not
after. The Court concludes that the Pagtalunan factors weigh in favor of dismissal of
expeditious resolution of litigation and inhibits the Court’s ability to manage its
docket. Yourish, 191 F.3d at 990 (“The public’s interest in expeditious resolution of
litigation always favors dismissal.”). The Court also reasons that if Robinson is
serious about prosecuting this case, she could simply refile it upon dismissal, thereby
minimizing any prejudice against her.
Robinson’s failure to engage in the litigation she initiated hampers
Accordingly, the action is DISMISSED WITHOUT PREJUDICE for failure
to prosecute and failure to comply with court rules and orders.
IT IS SO ORDERED.
August 14, 2013
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE
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