In Re Kimberely Martin-Bragg

Filing 11

MINUTES (IN CHAMBERS) ORDER DISMISSING APPEAL by Judge Jesus G. Bernal. The Court DISMISSES the appeal and DIRECTS the Clerk to close the case. IT IS SO ORDERED. (SEE DOCUMENT FOR FURTHER DETAILS.) Case Terminated. Made JS-6. (rolm)

JS-6

cc: USBK

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No.

CV 22-3814 JGB
2:16-bk-22878-BR
22-ap-01080-BR

Date December 16, 2022

Title In Re Kimberely Martin-Bragg

Present: The Honorable

JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for Defendant(s):

None Present

None Present

Proceedings:

Order Dismissing Appeal (IN CHAMBERS)

The matter is before the Court on Appellant Ivan Rene Moore’s appeal from the
Bankruptcy Court’s May 20, 2022 “Order Dismissing March 29, 2022 Adversary Proceeding
with Prejudice.” (Dkt. No. 1.) On December 1, 2022, the Court issued an order to show cause
why this appeal should not be dismissed for violation of the Vexatious Litigant Order and for lack
of prosecution. (“OSC,” Dkt. No. 10.) The OSC ordered Appellant to respond no later than
December 12, 2022. (Id.) In the OSC, the Court advised Appellant “that his failure to file a
timely response to this Order shall be deemed his consent to the dismissal of the[] action[] with
prejudice.” (Id.)
Appellant did not file a timely response. Accordingly, the Court deems his failure to
failure a timely response his consent to the dismissal of the appeal with prejudice. Federal Rule
of Civil Procedure 41(b) grants the Court authority to sua sponte dismiss actions for failure to
prosecute or failure to comply with court orders. See Fed. R. Civ. P. 42(b); Wolff v. California,
318 F.R.D. 627, 630 (C.D. Cal. 2016). A party must prosecute his case with “reasonable
diligence” to avoid dismissal pursuant to Rule 41(b). Anderson v. Air W., Inc., 542 F.2d 522,
524 (9th Cir. 1976). Moore has failed to respond to the Court’s OSC by the deadline imposed by
the Court. The Court finds that Moore has failed to prosecute this case with reasonable diligence
and that dismissal is therefore appropriate.

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Before dismissing an action for either failure to prosecute, failure to obey a court order, or
failure to follow the local rules, a court must weigh several 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 the defendants; (4) the public policy favoring disposition of cases of their merits; and
(5) the availability of less drastic sanctions. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995)
(failure to follow local rules); Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (failure to
prosecute or to comply with a court order). The Court need not weigh these factors explicitly.
See Ghazali, 46 F.3d at 53–54.
The Court finds that dismissal is appropriate. Both the Court and the public benefit from
the expeditious resolution of this action because further delay will impede judicial efficiency. See
Pagtalunan, 291 F.3d at 642 (“fail[ing] to pursue the case for almost four months” favors
dismissal). Additional delay will also prejudice Appellees, forcing them to spend needless
resources on contesting this matter; in fact, Appellant has already unreasonably delayed this
action without explanation. See Sw. Marine Inc. v. Danzig, 217 F.3d 1128, 1138 (9th Cir. 2000)
(“Unreasonable delay is the foundation upon which a court may presume prejudice.”).
Moreover, less drastic sanctions are not realistic: Appellant has yet to pursue this case in any
meaningful way since the filing of the Notice of Appeal, failed to timely respond to the OSC, and
is unlikely to vigorously pursue the action in the future.
Additionally, absent any showing to the contrary, the Court finds that Appellant “is
subject to the requirements of the Vexatious Litigant Order, and Moore has not complied with its
terms,” for the same reasons that Judge Gee identified in an appeal of the same underlying
action. In re Debtor Kimberly Martin Bragg., C.D. Cal. Case No. 22-3451-DMG, Order
Dismissing Appeal (Dkt. No. 15). Appellant’s violation of the Vexatious Litigant Order provides
a second, independent reason to dismiss the appeal. See id.
For the reasons above, the Court DISMISSES the appeal and DIRECTS the Clerk to
close the case.
IT IS SO ORDERED.

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