Phillip Dixon v. Central Financial Control

Filing 12

MINUTE ORDER IN CHAMBERS by Judge Percy Anderson. the Court cautioned Plaintiff about the possibility of dismissal in the Court's September 20, 2017 Order. The Court finds that Plaintiff has abandoned this action. The Court therefore dismisses this action without prejudice for lack of prosecution. Case Terminated. Made JS-6. (See document for details) (mrgo)

JS-6

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

CV 17-3834 PA (FFMx)

Title

Phillip Dixon, Jr. v. Central Financial Control

Present: The Honorable

Date

October 12, 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

Plaintiff Phillip Dixon, Jr. (“Plaintiff”), appearing pro se, filed a complaint with this Court on
May 22, 2017. (Docket No. 1.) Plaintiff also filed a request for service by the United States Marshal,
which the Court granted on July 28, 2017. (Docket Nos. 3, 9.) The Court’s July 28 Order required
Plaintiff to provide certain information to the United States Marshal by August 18, 2017, and further
required Plaintiff to submit to the Court a declaration establishing his compliance with the Order by
August 25, 2017. (Docket No. 9) On September 20, 2017, having not received Plaintiff’s declaration,
the Court issued an Order to Show Cause why the action should not be dismissed for lack of
prosecution. (Docket No. 10.) The Order specifically warned Plaintiff that his failure to respond by
October 2, 2017, could result in sanctions, including dismissal of his complaint. (Id.) To date, and
despite the expiration of the deadline to do so, Plaintiff has not filed a response.
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; Ferdik v.
Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); Yourish, 191 F.3d at 987-88.
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) (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). Cases involving sua
sponte dismissal merit special focus on the fifth Henderson factor. Id.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

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JS-6

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

CV 17-3834 PA (FFMx)

Title

Date

October 12, 2017

Phillip Dixon, Jr. v. Central Financial Control

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
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. Although it is possible that the
defendant in this action has not yet been served, it may be further prejudiced unless the complaint is
dismissed. See Pagtalunan, 291 F.3d at 642-43 (stating 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, the Court notes that Plaintiff was warned
about the consequences of failing to file a response 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).
A dismissal should not be entered unless a plaintiff has been notified that dismissal is imminent.
See W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1523 (9th Cir. 1990). Here, the Court
cautioned Plaintiff about the possibility of dismissal in the Court’s September 20, 2017 Order. 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); Yourish, 191 F.3d at 986-88; Ferdik, 963
F.2d at 1260.
IT IS SO ORDERED.

CV-90 (06/04)

CIVIL MINUTES - GENERAL

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