Dishay David Ford v. Chancellor Bernard Luskin et al

Filing 43

MINUTE (In Chambers): ORDER DISMISSING ACTION FOR FAILURE TO COMPLY WITH A COURT ORDER by Judge Michael W. Fitzgerald: The action is DISMISSED with prejudice. This Order shall constitute notice of entry of judgment pursuant to Federal Rule of Civil Procedure 58. Pursuant to Local Rule 58-6, the Court ORDERS the Clerk to treat this Order, and its entry on the docket, as an entry of judgment. (Made JS-6. Case Terminated.) (jp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES—GENERAL
Case No. CV-16-01109-MWF (RAOx)
Date: February 14, 2017
Title:
Deshay David Ford -v- Chancellor Bernard Luskin, et al.
Present: The Honorable MICHAEL W. FITZGERALD, U.S. District Judge
Deputy Clerk:
Rita Sanchez

Court Reporter:
Not Reported

Attorneys Present for Plaintiff:
None Present

Attorneys Present for Defendant:
None Present

Proceedings (In Chambers): ORDER DISMISSING ACTION FOR FAILURE TO
COMPLY WITH A COURT ORDER
On February 17, 2016, Mr. Ford initiated this action against four Defendants:
Chancellor Bernard Luskin, Ventura County Community College District (the
“District”), Michael Shanahan, and Larry Kennedy. On the same day, Mr. Ford filed a
Proof of Service, indicating that he served the Complaint on Defendant Luskin and the
District through certified mail. (Proof of Service at 1 (Docket No. 2)).
On May 9, 2016, the Court entered an Order re: Proof of Service (the “OSC”)
giving Mr. Ford until May 31, 2016, to effect proper service on all Defendants named
in this action. (Docket No. 18). This was an extension of the time provided for in Rule
4(m) of the Federal Rules of Civil Procedure. The Court warned Mr. Ford that if he
did not file proper proof of service by May 31, 2016, the action would be dismissed
with prejudice.
Mr. Ford instead filed motions for reconsideration, for a replacement judge, and
to disqualify the Court. The various motions were denied. Mr. Ford appealed from the
Order denying the motion for a replacement judge. (Docket Nos. 27, 29–31). While
the appeal was pending, Mr. Ford filed two requests for entry of default. (Docket Nos.
33, 35). On January 4, 2017, the Ninth Circuit dismissed the appeal. (Docket No. 41).
Mr. Ford has since filed two Motions for Default Judgment with the Court. (Docket
Nos. 39, 42).
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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-16-01109-MWF (RAOx)
Date: February 14, 2017
Title:
Deshay David Ford -v- Chancellor Bernard Luskin, et al.
Defendants are yet to appear in this action, and Mr. Ford has yet to file proper
proof of service in accordance with Federal Rule of Civil Procedure 4 and this Court’s
OSC.
It is well-established that a district court has authority to dismiss a plaintiff’s
action due to her failure to prosecute and/or to comply with court orders. See Fed. R.
Civ. P. 41(b); Link v. Wabash Railroad Co., 370 U.S. 626, 629–30 (1962) (noting that
district court’s authority to dismiss for lack of prosecution is necessary to prevent
undue delays in the disposition of pending cases and avoid congestion in district court
calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (stating that district
court may dismiss action for failure to comply with any order of the court).
Before ordering dismissal, the Court must consider five 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 Defendant; (4) the public policy favoring the
disposition of cases on their merits; and (5) the availability of less drastic sanctions.
See In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (failure to prosecute); Ferdik, 963
F.2d at 1260–61 (failure to comply with court orders).
Here, the first two factors — the public’s interest in expeditious resolution of
litigation and the Court’s need to manage its docket — weigh in favor of dismissal.
Mr. Ford has failed even to notify properly the individuals against whom he now
requests default judgment. He has dragged his feet in prosecuting this action and has
disregarded the Court’s explicit instructions set forth in the OSC. Mr. Ford’s conduct
hinders the Court’s ability to move this case toward disposition and indicates that
Plaintiff does not intend to litigate diligently.
The third factor — prejudice to the putative Defendants — also weighs in favor
of dismissal. A rebuttable presumption of prejudice arises when there is a failure to
prosecute the action. Eisen, 31 F.3d at 1452–53. That presumption may be rebutted
where a plaintiff proffers an excuse for delay. Mr. Ford has failed to come forward
with any excuse or reason for delay.
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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-16-01109-MWF (RAOx)
Date: February 14, 2017
Title:
Deshay David Ford -v- Chancellor Bernard Luskin, et al.
The fourth factor — public policy in favor of deciding cases on their merits —
weighs against dismissal. It is Mr. Ford’s responsibility, however, to move the action
toward resolution at a reasonable pace and to avoid dilatory tactics. See Morris v.
Morgan Stanley Co., 942 F.2d 648, 652 (9th Cir. 1991). Mr. Ford has failed to
discharge his responsibility. In these circumstances, the public policy favoring
resolution of disputes on the merits does not outweigh Mr. Ford’s failure to prosecute.
The fifth factor — availability of less drastic sanctions — weighs in favor of
dismissal. The Court has attempted to avoid outright dismissal by issuing the OSC and
providing Mr. Ford an opportunity to explain why this matter should proceed despite
significant delay. Mr. Ford has not complied with the OSC and ignored the Court’s
explicit warning that “[i]f a Defendant is not properly served or if the proof of service
is not filed by May 31, 2016, then the claims against that Defendant will be dismissed
with prejudice.” (OSC at 2); see also 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.”). Mr. Ford has had nine months to serve the Defendants properly; the
Court has no indication that, if given yet another extension, Mr. Ford would finally
execute proper service.
Taking all of the above factors into account, dismissal for failure to prosecute
and failure to comply with the OSC is appropriate. Accordingly, the action is
DISMISSED with prejudice.
This Order shall constitute notice of entry of judgment pursuant to Federal Rule
of Civil Procedure 58. Pursuant to Local Rule 58-6, the Court ORDERS the Clerk to
treat this Order, and its entry on the docket, as an entry of judgment.
IT IS SO ORDERED.

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CIVIL MINUTES—GENERAL
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