Enrique Nava v. I. Martinez
ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE by Judge Michael W. Fitzgerald. IT IS THEREFORE ORDERED that this action is dismissed with prejudice under the Court's inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute,and because Plaintiff has failed to comply with Local Rule 41-6. (et)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
No. CV 20-00226-MWF (DFM)
ORDER DISMISSING ACTION FOR
FAILURE TO PROSECUTE
On January 8, 2020, Plaintiff filed a pro se civil rights Complaint
pursuant to 42 U.S.C. § 1983. See Dkt. 1. On June 22, 2020, the Court ordered
service of the Complaint on I. Martinez in her individual capacity. See Dkt.
13. On September 22, 2020, the Magistrate Judge ordered Plaintiff to file
within 30 days a completed Notice of Submission indicating that he had
submitted a completed summons, USM-285 form, and copies of the Complaint
to the U.S. Marshals Service. See Dkt. 14.
After Plaintiff failed to do so by the deadline, the Magistrate Judge
issued an Order to Show Cause why this case should not be dismissed for
failure to prosecute. See Dkt. 17. That Order was returned as undeliverable.
See Dkt. 18. Accordingly, on January 8, 2021, the Magistrate Judge ordered
Plaintiff to provide a current address within fourteen (14) days. See Dkt. 19.
Plaintiff was reminded of his obligation to keep the Court apprised of his
current address and expressly warned that failure to respond could result in
dismissal for failure to prosecute. See id. Plaintiff did not file a change of
address or respond to the OSC by the deadline.
Local Rule 41-6 requires that a party proceeding pro se “must keep the
Court . . . informed of the party’s current address as well as any telephone
number and email address. If a Court order or other mail served on a pro se
plaintiff at his address of record is returned . . . as undeliverable and the pro se
party has not filed a notice of change of address within 14 days of the service
date of the order,” the Court “may dismiss the action with or without prejudice
for failure to prosecute.”
Moreover, Plaintiff’s failure to respond to the Court’s OSC or update his
address brings this case within the purview of Carey v. King, 856 F.2d 1439,
1441 (9th Cir. 1988) (per curiam), which examined when it is appropriate to
dismiss a lawsuit for failure to prosecute. See also Link v. Wabash R.R. Co.,
370 U.S. 626, 629-30 (1962) (“The power to invoke [dismissal] is necessary in
order to prevent undue delays in the disposition of pending cases and to avoid
congestion in the calendars of the District Courts.”).
In deciding whether to dismiss a lawsuit for failure to prosecute, a court
must consider “(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.” Carey, 856 F.2d at 1440
(citation omitted). Unreasonable delay creates a rebuttable presumption of
prejudice that can be overcome only with an affirmative showing of just cause
by the petitioner. See In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994).
Here, the first, second, third, and fifth Carey factors militate in favor of
dismissal. Plaintiff has made it impossible for the Court to manage its docket
because it has no way to communicate with him, and for that same reason no
less drastic sanction is available. Additionally, the Court expressly warned
Plaintiff of the need to file an updated address, lest this action be dismissed for
failure to prosecute. See Ferdik v. Bonzelet, 963 F.2d 1258, 1263 (9th Cir.
1992) (“[A] district court’s warning to a party that his or her failure to obey the
court’s order will result in dismissal can satisfy the ‘consideration of
alternatives’ requirement.”); Although the fourth Carey factor weighs against
dismissal—as it always does—together the other factors outweigh the public’s
interest in disposing of the case on its merits.
IT IS THEREFORE ORDERED that this action is dismissed with
prejudice under the Court’s inherent power to achieve the orderly and
expeditious disposition of cases by dismissing actions for failure to prosecute,
and because Plaintiff has failed to comply with Local Rule 41-6.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Date: February 17, 2021
MICHAEL W. FITZGERALD
United States District Judge
DOUGLAS F. MCCORMICK
United States Magistrate Judge
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