Benito Rojas v. Portfolio Recovery Associates LLC et al

Filing 30

ORDER DISMISSING ACTION WITHOUT PREJUDICE by Judge Fernando M. Olguin that the above-captioned case is dismissed without prejudice. Judgment shall be entered accordingly. (jp)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16

BENITO ROJAS,

)
)
Plaintiff,
)
)
v.
)
)
PORTFOLIO RECOVERY ASSOCIATES )
LLC, et al.,
)
)
Defendants.
)
)

Case No. CV 16-9439 FMO (SSx)

ORDER DISMISSING ACTION WITHOUT
PREJUDICE

17

Pursuant to the Court’s Order of June 7, 2017 (Dkt. 26), the court granted defendant Steven

18

D. Frederickson’s motion to dismiss, and plaintiff was “granted until June 21, 2017, to file a first

19

amended complaint[.]” (See id. at 4). Plaintiff did not file anything on or before the deadline, and

20

on July 5, 2017, the court gave plaintiff one final opportunity to file an amended complaint. (See

21

Dkt. 28, Court’s Order of July 5, 2017, at 1). The court cautioned plaintiff that “failure to timely file

22

a First Amended Complaint may result in this action being dismissed without prejudice for failure

23

to prosecute and/or failure to comply with a court order.” (Id.). As of the filing date of this Order,

24

plaintiff has not filed a first amended complaint or otherwise responded to the Court’s Orders of

25

June 7, 2017, or July 5, 2017.1 (See, generally, Dkt.).

26
27
28

1

Moreover, although it appears that the parties agreed to mediate their disputes before
a mediator on July 21, 2017, (see Dkt. 27, Notice of Mediation Date), plaintiff or plaintiff’s
representative did not appear. (See Dkt. 29, Mediation Report).

1

A district court’s authority to dismiss a litigant’s claims for failure to prosecute or to comply

2

with court orders is well-established. See Fed. R. Civ. P. 41(b);2 Link v. Wabash R.R. Co., 370

3

U.S. 626, 629-30, 82 S.Ct. 1386, 1388 (1962) (“The authority of a federal trial court to dismiss a

4

plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted.”);

5

Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert. denied, 506 U.S. 915 (1992). “The power

6

to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending

7

cases and to avoid congestion in the calendars of the District Courts.” Link, 370 U.S. at 629-30,

8

82 S.Ct at 1388.

9

A district court may dismiss a plaintiff’s complaint pursuant to Rule 41(b) when plaintiff fails

10

to amend the complaint or file a notice of intent not to amend the complaint.3 See Edwards v.

11

Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004) (reversing dismissal of action when plaintiff

12

timely filed a notice of intent not to amend); Yourish v. California Amplifier, 191 F.3d 983, 989 (9th

13

Cir. 1999) (affirming dismissal for failure to file an amended complaint or notice of intent); Ferdik,

14

963 F.2d at 1261 (same). In other words, “[t]he failure of the plaintiff eventually to respond to the

15

court’s ultimatum – either by amending the complaint or by indicating to the court that it will not

16

do so – is properly met with the sanction of a Rule 41(b) dismissal.”4 Edwards, 356 F.3d at 1065

17

(“a threatened Rule 12(b)(6) dismissal [] ferment[s] into a Rule 41(b) dismissal only upon a

18
19

2

20

3

21
22
23
24
25
26
27
28

All “Rule” citations refer to the Federal Rules of Civil Procedure.

In addition, a litigant’s “[f]ailure to follow a district court’s local rules is a proper ground for
dismissal” for failure to prosecute. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.) (per curiam), cert.
denied, 516 U.S. 838 (1995) (holding that where the plaintiff failed to file an opposition to a motion
to dismiss, the district court did not abuse its discretion in dismissing the action pursuant to a local
rule stating that a party’s failure to file an opposition “shall constitute a consent to the granting of
the motion”).
4

The requirement that plaintiff amend the complaint or file a notice of intent is not “merely
formal.” Edwards, 356 F.3d at 1065. Absent the filing of a notice of intent not to amend, the
appellate court lacks jurisdiction to hear the appeal. See WMX Techs., Inc. v. Miller, 104 F.3d
1133, 1135 (9th Cir. 1997) (en banc) (“Unless a plaintiff files in writing a notice of intent not to file
an amended complaint, such dismissal order is not an appealable final decision.”). Further, the
Ninth Circuit “review[s] a Rule 41(b) dismissal only for abuse of discretion in applying the five
factors [] which pertain to the propriety of the sanction, not to the merits of the underlying question
(such as whether a complaint states a claim).” Edwards, 356 F.3d at 1065.
2

1

plaintiff’s inaction”) (emphasis in original). Here, plaintiff has neither filed an amended complaint

2

nor a notice of intent not to amend the complaint. (See, generally, Dkt.).

3

In determining whether to dismiss plaintiff’s Complaint pursuant to Rule 41(b), the court

4

considers the following five factors: “(1) the public’s interest in expeditious resolution of litigation;

5

(2) the court’s need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4)

6

the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases

7

on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002), cert. denied, 538 U.S.

8

909 (2003). “Although it is preferred, it is not required that the district court make explicit findings

9

in order to show that it has considered these factors and [the Ninth Circuit] may review the record

10

independently to determine if the district court has abused its discretion.” Ferdik, 963 F.2d at

11

1261.

12

The first factor, the public’s interest in the expeditious resolution of litigation, “always favors

13

dismissal.” Pagtalunan, 291 F.3d at 642; see Yourish, 191 F.3d at 990 (“Given the district court’s

14

superior position in evaluating the public interest in expeditious resolution of a particular case, []

15

this factor strongly favors dismissal.”); see also In re Phenylpropanolamine (PPA) Prods. Liab.

16

Litig., 460 F.3d 1217, 1234 (9th Cir. 2006) (“[D]ismissal serves the public interest in expeditious

17

resolution of litigation as well as the court’s need to manage the docket when a plaintiff’s

18

noncompliance has caused the action to come to a halt, thereby allowing the plaintiff, rather than

19

the court, to control the pace of the docket.”).

20

The second factor, the court’s need to manage its docket, also favors dismissal. See

21

Pagtalunan, 291 F.3d at 642 (holding that this factor weighed in favor of dismissal where the

22

petition “consumed some of the court’s time that could have been devoted to other cases on the

23

docket”); Edwards, 356 F.3d at 1065 (noting that where a plaintiff does not act, “resources

24

continue to be consumed by a case sitting idly on the court’s docket”). Here, plaintiff’s “failure to

25

amend ha[s] caused the action to come to a complete halt and ha[s] allowed the Plaintiff[] to

26

control the pace of the docket rather than the Court.” Yourish, 191 F.3d at 990 (internal quotation

27

marks omitted).

28

The third factor, prejudice to defendants, also favors dismissal. In the absence of a
3

1

showing to the contrary, prejudice to a defendant is presumed from unreasonable delay. See In

2

re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994) (“This rebuttable presumption of prejudice refutes

3

. . . [the] contention that delay alone, regardless of actual prejudice, does not necessitate a

4

dismissal for failure to prosecute.”) (internal quotation marks omitted); Henderson v. Duncan, 779

5

F.2d 1421, 1425 (9th Cir. 1986) (“[A]lthough no specific showing of prejudice to defendants is

6

made, the integrity of the district court is involved.”). Here, the court granted plaintiff leave to file

7

an amended complaint, (see Dkt. 26, Court’s Order of June 7, 2017, at 4), and recently gave

8

plaintiff one more opportunity to file an amended complaint. (See Dkt. 28, Court’s Order of July

9

5, 2017). Despite these accommodations, plaintiff failed to file a first amended complaint or notice

10

of intent not to amend, (see, generally, Dkt.), which has prevented the court from moving the case

11

forward.

12

The fourth factor, the availability of less drastic sanctions, also favors dismissal. “[A] district

13

court’s warning to a party that his failure to obey the court’s order will result in dismissal can satisfy

14

the consideration of alternatives requirement.” Ferdik, 963 F.2d at 1262 (internal quotation marks

15

omitted). Here, considering the multiple opportunities the court provided plaintiff to enable him to

16

prosecute the action, (see Dkt. 26, Court’s Order of June 7, 2017, at 4; Dkt. 28, Court’s Order of

17

July 5, 2017), and given that the case has been at a standstill, the court is persuaded that

18

dismissing the action is the most appropriate sanction. See Anderson v. Air West, Inc., 542 F.2d

19

522, 525 (9th Cir. 1976) (“There is no requirement that every single alternate remedy be examined

20

by the court before the sanction of dismissal is appropriate. The reasonable exploration of

21

possible and meaningful alternatives is all that is required.”).

22

The fifth factor, the public policy favoring disposition of claims on their merits, weighs

23

against dismissal. See Pagtalunan, 291 F.3d at 643. However, despite the policy favoring

24

disposition on the merits, it remains plaintiff’s responsibility to prosecute and move the case

25

towards a final disposition. See In re Eisen, 31 F.3d at 1454 (litigant has a responsibility “to move

26

towards that disposition at a reasonable pace, and to refrain from dilatory and evasive tactics.”).

27

Plaintiff has not fulfilled that responsibility here.

28

The five-factor test for dismissal under Rule 41(b) is a disjunctive balancing test, so not all
4

1

five factors must support dismissal for the court to grant defendants’ Motion. See Valley Eng’rs

2

Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998), cert. denied, 526 U.S. 1064 (1999)

3

(noting that the five-factor test “amounts to a way for a district judge to think about what to do, not

4

a series of conditions precedent” to dismissal); Hernandez v. City of El Monte, 138 F.3d 393, 399

5

(9th Cir. 1998) (the Ninth Circuit “may affirm a dismissal where at least four factors support

6

dismissal, or where at least three factors strongly support dismissal.”) (internal quotation marks

7

and citations omitted). Here, four of the five factors support dismissal of action. Thus, the

8

remaining question is whether the dismissal should be with or without prejudice. See Fed. R. Civ.

9

P. 41(b); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996); Yourish, 191 F.3d at 992

10

(“allowing the plaintiff to replead is [] a less drastic alternative to dismissal [with prejudice] once

11

[plaintiff] has [] disobeyed a court order”). Under the circumstances, the court finds that plaintiff’s

12

claims should be dismissed without prejudice.

13

Finally, even assuming plaintiff’s action was not being dismissed pursuant to Rule 41(b),

14

the court, having evaluated the arguments set forth in the briefing, is persuaded that the Motion

15

should be granted on the merits. As set forth in the Court’s Order of June 7, 2017, at 3 (Dkt. 26),

16

the court found that plaintiff failed to allege sufficient facts to assert personal jurisdiction over at

17

least some of the defendants in this action. (See id.).

18

Based on the foregoing, IT IS ORDERED THAT the above-captioned case is dismissed

19

without prejudice. Judgment shall be entered accordingly.

20

Dated this 26th day of July, 2017.

21
/s/
Fernando M. Olguin
United States District Judge

22
23
24
25
26
27
28
5