Bernard v. JACK IN THE BOX, INC. et al

Filing 15

(IN CHAMBERS) ORDER by Judge Percy Anderson: The Court finds that Plaintiff has abandoned this action. The Court therefore dismisses this action without prejudice for lack of prosecution. Please refer to the Court's order for specifics. (Case Terminated. Made JS-6.) (cr)

JS-6

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 17-3083 PA (JEMx)

Title

Alfred Bernard v. Jack in the Box, et al.

Present: The Honorable

Date

July 18, 2017

PERCY ANDERSON, UNITED STATES DISTRICT JUDGE

Kamilla Sali-Suleyman

N/A

N/A

Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None

None

Proceedings:

IN CHAMBERS—ORDER

On June 15, 2017, the clerk entered default against Jack in the Box (“Defendant”). (Docket No.
13.) The Court issued an order on June 16, 2017, directing plaintiff Alfred Bernard (“Plaintiff”) to file a
motion for default judgment or other dispositive motion no later than July 17, 2017. (Docket No. 14.)
The Court’s June 16 Order warned Plaintiff that the failure to file a dispositive motion by July 17, 2017,
may result in dismissal of the action without further notice by the Court. To date, and despite the
expiration of the deadline to do so, Plaintiff has not filed a dispositive motion.
The Court may dismiss with prejudice an action or claim sua sponte if “the plaintiff fails to
prosecute or to comply with the [Federal Rules of Civil Procedure] or a court order.” See Fed. R. Civ.
Proc. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629–30, 82 S. Ct. 1386, 1388, 8 L. Ed. 2d 734
(1962) (dismissal for failure to prosecute); Yourish v. Cal. Amplifier, 191 F.3d 983, 987–88 (9th Cir.
1999) (dismissal for failure to comply with court order). This inherent power supports the orderly and
expeditious disposition of cases. See Link, 370 U.S. at 629–30, 82 S. Ct. 1386, 1388–89, 8 L. Ed. 2d
734; Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); Yourish v. Cal. Amplifier, 191 F.3d 983,
987–88 (9th Cir. 1999).
In Henderson v. Duncan, the Ninth Circuit set forth five factors for a district court to consider
before resorting to the penalty of dismissal: “(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 the defendants; (4) the
public policy favoring disposition of cases on their merits and (5) the availability of less drastic
sanctions.” 779 F.2d 1421, 1423 (9th Cir. 1986). Dismissal is appropriate “where at least four factors
support dismissal, or where at least three factors ‘strongly’ support dismissal.” Hernandez v. City of El
Monte, 138 F.3d 393, 399 (9th Cir. 1998) (internal citations omitted) (citing Ferdik, 963 F.2d at 1263).
Cases involving sua sponte dismissal merit special focus on the fifth Henderson factor. Id.
Here, in assessing the first Henderson factor, the public’s interest in expeditious resolution of
litigation will be satisfied by a dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002)
(citing Yourish, 191 F.3d at 990 (public’s interest in expeditious resolution of litigation always favors

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JS-6

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 17-3083 PA (JEMx)

Title

Date

July 18, 2017

Alfred Bernard v. Jack in the Box, et al.

dismissal)). Relatedly, with respect to the second factor, the Court’s need to manage its docket will be
served by dismissal. See id.
The third Henderson factor at least marginally favors dismissal. Defendant may be further
prejudiced unless the complaint is dismissed. See Yourish, 191 F.3d at 991; Pagtalunan, 291 F.3d at 642
(holding that failure to timely amend risks prejudice and can justify dismissal).
In considering the fourth and fifth Henderson factors, the Court notes that Plaintiff was warned
about the consequences of failing to file a dispositive motion by the date set by the Court. Nevertheless,
Plaintiff has taken no action whatsoever. It therefore appears that Plaintiff has abandoned his efforts to
obtain a judgment on the merits. Additionally, the Court intends to dismiss this action without
prejudice. Accordingly, the fifth Henderson factor favors dismissal because the Court has adopted the
“less-drastic” sanction of dismissal without prejudice. See McHenry v. Renne, 84 F.3d 1172, 1179 (9th
Cir. 1996) (district court should first consider less drastic alternatives to dismissal with prejudice).
The Court finds that Plaintiff has abandoned this action. The Court therefore dismisses this
action without prejudice for lack of prosecution. See Fed. R. Civ. P. 41(b); see also Yourish, 191 F.3d at
986–88; Ferdik, 963 F.2d at 1260.
IT IS SO ORDERED.

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