Sarah Ann Stephens v. Stephens et al

Filing 10

ORDER DISMISSING ACTION FOR FAILURE TO RESPOND TO COURT ORDER AND FAILURE TO PROSECUTE by Judge Otis D. Wright, II,. It therefore is 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 them for failure to prosecute and because Plaintiff has not responded to the Court's August 13, 2024 order to show cause. LET JUDGMENT BE ENTERED ACCORDINGLY. (es)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SARAH ANN STEPHENS, 11 12 13 14 Plaintiff, v. MOSQUEDA et al., Defendants. 15 16 ) ) ) ) ) ) ) ) ) ) Case No. EDCV 21-1273-ODW(JPR) ORDER DISMISSING ACTION FOR FAILURE TO RESPOND TO COURT ORDER AND FAILURE TO PROSECUTE On July 28, 2021, Plaintiff filed this civil-rights action; 17 a couple of months later, after she was denied in forma pauperis 18 status, she paid the filing fee. When she had not filed a proof 19 of service or taken any other action in this case for years, the 20 previously assigned magistrate judge issued an order to show 21 cause why this action should not be dismissed for Plaintiff’s 22 failure to serve the complaint and to prosecute. On August 30, 23 2024, that order was returned in the mail as undeliverable. 24 Plaintiff has never filed a change of address. 25 Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (per 26 curiam), examined when it is appropriate to dismiss a lawsuit for 27 failure to prosecute. See also Link v. Wabash R.R., 370 U.S. 28 626, 629–30 (1962) (“The power to invoke [dismissal] is necessary 1 1 in order to prevent undue delays in the disposition of pending 2 cases and to avoid congestion in the calendars of the District 3 Courts.”). 4 In deciding whether to do so, a court must consider “(1) the 5 public’s interest in expeditious resolution of litigation; (2) 6 the court’s need to manage its docket; (3) the risk of prejudice 7 to the defendants; (4) the public policy favoring disposition of 8 cases on their merits[;] and (5) the availability of less drastic 9 sanctions.” Carey, 856 F.2d at 1440 (citation omitted). 10 Unreasonable delay creates a “rebuttable presumption of 11 prejudice” to the defendant that can be overcome only with an 12 affirmative showing of just cause by the plaintiff. In re Eisen, 13 31 F.3d 1447, 1452-53 (9th Cir. 1994). 14 Local Rule 41-6 likewise provides that 15 [a] party proceeding pro se must keep the Court . . . 16 informed of the party’s current address . . . . 17 Court order or other mail served on a pro se plaintiff at 18 his address of record is returned by the Postal Service 19 as undeliverable and the pro se party has not filed a 20 notice of change of address within 14 days of the service 21 date of the order or other Court document, the Court may 22 dismiss the action with or without prejudice for failure 23 to prosecute. 24 Here, the first, second, third, and fifth Carey factors 25 favor dismissal. If a Because Plaintiff has failed to file a change 26 of address, the Court can’t communicate with her and therefore 27 can’t manage its docket. Plus, because she hasn’t responded to 28 the order to show cause, she hasn’t rebutted the presumption of 2 1 prejudice to Defendants. Because of the Court’s inability to 2 communicate with Plaintiff, no less drastic sanction exists. 3 Moreover, the Court cannot simply leave this case hanging on its 4 docket in the hope that Plaintiff one day reappears, particularly 5 given that it is already more than three years old. Although the 6 fourth Carey factor weighs against dismissal — as it does in 7 every case — together, the other factors outweigh the public’s 8 interest in disposing of the case on its merits. See Scott v. 9 Belmares, 328 F. App’x 538, 539 (9th Cir. 2009) (affirming 10 dismissal of civil-rights lawsuit in part because pro se 11 plaintiff failed to keep court apprised of change of address 12 under Local Rule 41-6). 13 It therefore is ORDERED that this action is dismissed with 14 prejudice under the Court’s inherent power to achieve the orderly 15 and expeditious disposition of cases by dismissing them for 16 failure to prosecute and because Plaintiff has not responded to 17 the Court’s August 13, 2024 order to show cause. LET JUDGMENT BE 18 ENTERED ACCORDINGLY. 19 20 DATED: September 26, 2024 21 22 _____________________________ OTIS D. WRIGHT II U.S. DISTRICT JUDGE Presented by: __________________________ _ ____________ 23 Je Jean J an P. Rosenbluth Rosen 24 U.S. Magistrate Judge 25 26 27 28 3

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