Sally George et al v. United States of America

Filing 15

MINUTES (In Chambers): ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE before Judge Michael W. Fitzgerald: IT IS HEREBY ORDERED that this action be DISMISSED without prejudice. The Court ORDERS the Clerk to treat this Order, and its entry on the docket, as an entry of judgment. Local Rule 58-6. (Made JS-6. Case Terminated.) (jp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES—GENERAL
Case No. CV 16-6221 MWF (JPRx)
Date: December 20, 2016
Title:
Sally George, et al. v. United States of America, et al.
Present: The Honorable MICHAEL W. FITZGERALD , U.S. DISTRICT JUDGE
Rita Sanchez
Deputy Clerk

Not Reported
Court Reporter/Recorder

Attorneys Present for Plaintiff:
Not Present

N/A
Tape No.

Attorneys Present for Defendants:
Not Present

Proceedings (In Chambers): ORDER DISMISSING ACTION FOR FAILURE
TO PROSECUTE
On August 18, 2016, Plaintiffs Sally George and her husband and children
initiated this action requesting the Court to require Defendants, including U.S.
Citizenship and Immigration Services, to reopen the agency’s decision denying
Plaintiff adjustment of status. (See generally Complaint (Docket No. 1)). Plaintiffs
served Defendants on August 18, 2016. (See Proof of Service (Docket No. 1-1). On
November 10, 2016, the Court issued an Order to Show Cause (“OSC”) for lack of
prosecution, directing Plaintiff to file an application for entry of default, pursuant to
Federal Rule of Civil Procedure 55(a), no later than December 5, 2016. (Docket No.
14). Plaintiff has failed to do so.
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).
In determining whether to dismiss a case for failure to prosecute or failure to
comply with court orders, the Court considers 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
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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 16-6221 MWF (JPRx)
Date: December 20, 2016
Title:
Sally George, et al. v. United States of America, et al.
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).
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.
Plaintiffs have delayed in prosecuting this action and have disregarded the Court’s
explicit instructions set forth in the OSC. Plaintiffs’ conduct hinders the Court’s
ability to move this case toward disposition and indicates that Plaintiffs do not intend
to litigate diligently.
The third factor — prejudice to 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. Plaintiffs have failed to come forward
with any excuse or reason for delay.
The fourth factor — public policy in favor of deciding cases on their merits —
weighs against dismissal. It is Plaintiffs’ 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). Plaintiffs have failed to
discharge their responsibility. In these circumstances, the public policy favoring
resolution of disputes on the merits does not outweigh Plaintiffs’ 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 Plaintiffs an opportunity to explain why this matter should proceed
despite significant delay. Plaintiffs have not complied with the OSC and ignored the
Court’s explicit warning that “[f]ailure to respond . . . will result in dismissal of this
action.” (OSC at 1); 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.”).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 16-6221 MWF (JPRx)
Date: December 20, 2016
Title:
Sally George, et al. v. United States of America, et al.
Taking all of the above factors into account, dismissal for failure to prosecute
and failure to comply with the OSC is appropriate.
IT IS HEREBY ORDERED that this action be DISMISSED without
prejudice. The Court ORDERS the Clerk to treat this Order, and its entry on the
docket, as an entry of judgment. Local Rule 58-6.
IT IS SO ORDERED.

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CIVIL MINUTES—GENERAL
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