Bryan Surles et al v. City of Los Angeles et al

Filing 30

MINUTE ORDER IN CHAMBERS - COURT ORDER by Judge Percy Anderson. As a result of the parties' violation of the Order Setting Scheduling Conference, this action is dismissed without prejudice. Case Terminated. Made JS-6. (mrgo)

JS-6

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

CV 17-3635 PA (ASx)

Title

Bryan Surles, et al. v. City of Los Angeles, et al.

Present: The Honorable

Date

October 18, 2017

PERCY ANDERSON, UNITED STATES DISTRICT JUDGE

Kamilla Sali-Suleyman

Not Reported

N/A

Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None

None

Proceedings:

IN CHAMBERS - COURT ORDER

The parties have not filed the Joint Scheduling Report required by Federal Rule of Civil
Procedure 26(f), Local Rule 26, and the Court’s Order Scheduling Meeting of Counsel and Setting
Scheduling Conference dated August 28, 2017 (“Order Setting Scheduling Conference,” Docket No. 25).
The Order Setting Scheduling Conference warns: “The failure to submit a joint report in advance of the
Scheduling Conference or the failure to attend the Scheduling Conference may result in the dismissal of
the action, striking the answer and entering a default, and/or the imposition of sanctions.” (Id. at 3.) On
September 11, 2017, the parties filed a Joint Notice re: Status of Settlement and Dismissal in which the
parties stated that they had reached a full settlement. (Docket No. 28.) The parties indicated that they
would file a dismissal of this action within 30 days (id. at 1-2), but to date they have failed to do so.
Additionally, having received notification that the case had settled, the Court issued an Order on August
30, 2017, stating that the parties had 10 days to file a dismissal of the action. (Docket No. 27.) The
Court’s Order stated that “[i]f the parties do not dismiss the action or do not place the settlement on the
record, the matter will remain on the Court’s active trial calendar with all pretrial and trial dates in
effect.” (Id.)
Federal Rule of Civil Procedure 41(b) provides that a defendant may move for dismissal of an
action “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order.” Although
Rule 41(b) provides for dismissal on the motion of the defendant, the Court can also dismiss an action
sua sponte pursuant to Rule 41(b). See Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S. Ct. 1386,
8 L. Ed. 2d 734 (1962); see also Alexander v. Pac. Mar. Ass’n, 434 F.2d 281, 283-84 (9th Cir. 1970).
The permissive language of Rule 41—that defendant “may” move for dismissal—does not limit the
Court’s ability to dismiss sua sponte if the defendant makes no motion for dismissal. Link, 370 U.S. at
630, 82 S. Ct. 1386, 8 L. Ed. 2d 734. The Court has the inherent power to achieve the orderly and
expeditious disposition of cases by dismissing actions pursuant to Rule 41(b) with prejudice for failure
to prosecute or for failure to comply with a court order. See id. at 629-30, 82 S. Ct. 1386, 8 L. Ed. 2d
734 (dismissal for failure to prosecute); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (same);
Yourish v. Cal. Amplifier, 191 F.3d 983, 987 (9th Cir. 1999) (dismissal for failure to comply with court
order).

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JS-6

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

CV 17-3635 PA (ASx)

Date

Title

October 18, 2017

Bryan Surles, et al. v. City of Los Angeles, et al.

In Henderson v. Duncan, 779 F.2d 1421 (9th Cir. 1986), 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.” Id. at 1423. Cases involving sua sponte dismissal merit special focus on
considerations relating to the fifth Henderson factor. Hernandez v. City of El Monte, 138 F.3d 393, 399
(9th Cir. 1998). 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) (citation omitted) (first citing Malone v. U.S. Postal Serv., 833 F.2d 128, 133 & n.2 (9th Cir.
1987); and then quoting Ferdik, 963 F.2d at 1263).
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)
(“The public’s interest in expeditious resolution of litigation always favors dismissal.” (quoting Yourish,
191 F.3d at 990)). Relatedly, with respect to the second factor, the Court’s need to manage its docket
will be served by dismissal. See id. (“It is incumbent upon the Court to manage its docket without being
subject to routine noncompliance of litigants.”).
The third Henderson factor at least marginally favors dismissal. Defendants may be further
prejudiced unless the complaint is dismissed. See Yourish, 191 F.3d at 991; Pagtalunan, 291 F.3d at
642-43 (holding that failing to timely amend risks prejudice and can justify dismissal and also noting
that “[u]nnecessary delay inherently increases the risk that witnesses’ memories will fade and evidence
will become stale”).
In considering the fourth and fifth Henderson factors, this Court’s Order Setting Scheduling
Conference, as noted above, warned that “failure to submit a joint report in advance of the Scheduling
Conference . . . may result in the dismissal of the action.” Despite this warning, the parties failed to
submit the required report. The parties also were warned that all pretrial dates would remain in effect if
they did not dismiss this action or place their settlement on the record. 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); see also Henderson, 779 F.2d at 1424 (“The district court need not exhaust
every sanction short of dismissal before finally dismissing a case, but must explore possible and
meaningful alternatives.”).
As a result of the parties’ violation of the Order Setting Scheduling Conference, this action is
dismissed without prejudice. See Fed. R. Civ. P. 41(b); see also Yourish, 191 F.3d at 986-88; Ferdik,
963 F.2d at 1260. The Scheduling Conference set for October 23, 2017, is vacated.
IT IS SO ORDERED
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