Robert McCarthy v. King Pacific Beach Investment, Inc., et al

Filing 10

MINUTE (In Chambers): ORDER DISMISSING ACTION 9 by Judge Michael W. Fitzgerald: Plaintiff has failed to respond to the Court's order. Accordingly, this action is DISMISSED. (Case Terminated. Made JS-6.) (jp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES—GENERAL
Case No. CV 17-0717-MWF (MRWx)
Date: May 18, 2017
Title:
Robert McCarthy -v.- King Pacific Beach Investment, Inc., 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 [9]
On January 30, 2017, Plaintiff filed his Complaint. (Docket No. 1). Plaintiff
has taken no further action since. On May 2, 2017, the Court ordered Plaintiff to show
cause, in writing, by May 16, 2017, why the action should not be dismissed for failure
to prosecute. (Docket No. 9). The Court warned that failure to respond timely would
result in dismissal of the action. (Id.).
Plaintiff has failed to respond to the Court’s order. Accordingly, this action is
DISMISSED.
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).
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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES—GENERAL
Case No. CV 17-0717-MWF (MRWx)
Date: May 18, 2017
Title:
Robert McCarthy -v.- King Pacific Beach Investment, Inc., et al.
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.
This action was filed in January 2017, and yet Plaintiff has not yet even served the
Complaint upon Defendants. Plaintiff’s three and a half month delay hinders the
orderly resolution of his claims on their merits.
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. Plaintiff has 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 Plaintiff’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). Plaintiff has failed to
discharge his responsibility. Additionally, because the action is dismissed without
prejudice, Plaintiff may refile his claims, so long as the limitations period has not
expired. In these circumstances, the public policy favoring resolution of disputes on
the merits does not outweigh Plaintiff’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 Plaintiff a reasonable opportunity to serve Defendants even outside the
proscribed time limits. See Fed. R. Civ. P. 4(m) (requiring defendants to be served
within 90 days of the filing of the complaint). Plaintiff has not complied with the OSC
despite the Court’s warning that failure to file the requested response would result in
the action’s dismissal. 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.”).
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 without prejudice.
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CIVIL MINUTES—GENERAL
2

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES—GENERAL
Case No. CV 17-0717-MWF (MRWx)
Date: May 18, 2017
Title:
Robert McCarthy -v.- King Pacific Beach Investment, Inc., et al.
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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