Peggy Robinson v. Derrick John Toole

Filing 11

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)

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JS-6 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 11 12 13 PEGGY ROBINSON, v. Plaintiff, Case No. 2:13-cv-5111-ODW(RZx) ORDER DISMISSING CASE FOR LACK OF PROSECUTION DERRICK JOHN TOOLE, Defendant. 14 On August 7, 2013, the Court issued its Order to Show Cause why this case 15 should not be dismissed for failure to prosecute. (ECF No. 9.) Based on Plaintiff 16 Peggy Robinson’s Proof of Service, Defendant Derrick John Toole’s answer to the 17 Complaint was due August 7, 2013. (ECF No. 8.) To date, Toole has not filed an 18 answer in this case. 19 But in response to the Order to Show Cause, instead of filing a request for entry 20 of default or a statement of reasons demonstrating good cause for the failure to 21 prosecute, Robinson filed a stipulation to extend time under Local Rule 8-3. This 22 stipulation is not responsive to the Court’s Order to Show Cause. 23 Federal courts are empowered to administer the “just, speedy, and inexpensive 24 determination of every action and proceeding.” Fed. R. Civ. P. 1. With such a 25 mandate, courts may dismiss an action for failure to prosecute or to comply with rules 26 and orders under Federal Rule of Civil Procedure 41(b). See Pagtalunan v. Galaza, 27 291 F.3d 639, 642–43 (9th Cir. 2002) (“In determining whether to dismiss a claim for 28 failure to prosecute or failure to comply with a court order, the Court must weigh the 1 following factors: (1) the public’s interest in expeditious resolution of litigation; (2) 2 the court’s need to manage its docket; (3) the risk of prejudice to 3 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 4 public policy favoring disposition of cases on their merits.”); Yourish v. Cal. 5 Amplifier, 191 F.3d 983, 989–92 (9th Cir. 1999) (explaining the factors supporting 6 dismissal with prejudice for failure to prosecute). 7 Not only is Robinson’s stipulation to extend time an improper response to the 8 Order to Show Cause, the stipulation was improperly filed. Logic dictates that a Rule 9 8-3 stipulation must be filed prior to the initial deadline to answer a complaint, not 10 after. The Court concludes that the Pagtalunan factors weigh in favor of dismissal of 11 this action. 12 expeditious resolution of litigation and inhibits the Court’s ability to manage its 13 docket. Yourish, 191 F.3d at 990 (“The public’s interest in expeditious resolution of 14 litigation always favors dismissal.”). The Court also reasons that if Robinson is 15 serious about prosecuting this case, she could simply refile it upon dismissal, thereby 16 minimizing any prejudice against her. 17 18 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. 19 IT IS SO ORDERED. 20 August 14, 2013 21 22 23 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 24 25 26 27 28 2

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