Gevorg Hope v. United States of America et al

Filing 37

MINUTES IN CHAMBERS by Judge Percy Anderson. As a result of the parties' violation of the Court's Civil Trial Scheduling Order and failure to prosecute, this action is dismissed without prejudice. The Pretrial Conference scheduled for June 7, 2024, and the Trial scheduled for June 25, 2024, are vacated. (See document for further details). (aco)

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

EDCV 23-11 PA (SHKx)

Title

Gevorg Hope v. United States of America

Present: The Honorable

Date

June 5, 2024

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

On June 6, 2023, the Court issued its Civil Trial Scheduling Order. Pursuant to the Civil
Trial Scheduling Order, and the Court’s October 16, 2023 Order continuing the trial and pretrial
dates, the parties were required to file certain pretrial documents with the Court by May 24,
2024, including, but not limited to, the Proposed Joint Pretrial Conference Order, Joint Exhibit
and Witness Lists, Contentions of Fact and Law, and a Status Report Regarding Settlement.
This Court’s Civil Trial Scheduling Order specifically warns that “[t]he failure to attend the
pretrial conference or to submit in conformity with this order, the jury instructions, pre-trial
exhibit stipulation, joint statement of the case, voir dire questions, summary of witness testimony
and times estimates, proposed Pretrial Conference Order or the memorandum of contentions of
fact and law may result in the dismissal of the action, striking the answer and entering default,
and/or the imposition of sanctions.” (Docket No. 25.)
On March 4, 2024, the appointed mediator filed a Mediation Report indicating that the
parties had settled. That same day, the Court issued an order informing the parties that they had
10 days to either place a settlement on the record or file a dismissal. The Court explicitly
warned, “If 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.) To date, despite the expiration of the deadlines contained in both the Court’s Civil Trial
Scheduling Order and March 4, 2024 Minute Order, the parties have not placed the settlement on
the record, filed a dismissal, or filed the required pretrial documents.
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., 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 an action sua sponte where the
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 23-11 PA (SHKx)

Date

Title

Gevorg Hope v. United States of America

June 5, 2024

defendant does not move 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).
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.” Id. (citations omitted).
Here, in assessing the first and second Henderson factors, 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)). Moreover, the Court’s need to
manage its docket will be served by dismissal. See id.
The third Henderson factor at least marginally favors dismissal. “Unreasonable delay is
the foundation upon which a court may presume prejudice.” Southwest Marine Inc. v. Danzig,
217 F.3d 1128, 1138 (9th Cir. 2000). Risk of prejudice to a defendant is related to the plaintiff’s
reason for failure to prosecute an action. See id. at 642 (citing Yourish, 191 F.3d at 991).This
action involved many separate parties, any one of whom may be prejudiced unless the action is
dismissed. See Yourish, 191 F.3d at 991; Pagtalunan, 291 F.3d at 642 (holding that failing to
timely amend risks prejudice and can justify dismissal).
In considering the fourth and fifth Henderson factors, this Court’s Civil Trial Scheduling
Order, as noted above, warned the parties that the failure to submit the required pretrial
documents could result in the dismissal of the action. Despite this warning, the parties failed to
submit any pretrial documents by the date set by the Court. The public policy favoring the
disposition of cases on their merits, ordinarily weighs against dismissal. See Dreith v. Nu
Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011). However, it is the responsibility of the moving
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 23-11 PA (SHKx)

Date

Title

Gevorg Hope v. United States of America

June 5, 2024

party to prosecute the action at a reasonable pace and to refrain from dilatory and evasive tactics.
See Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991). Here, plaintiff has
failed to discharge his responsibility to prosecute this action despite the Court’s express
warnings. 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, 1178 (9th Cir.
1996) (district court should first consider less drastic alternatives to dismissal with prejudice).
As a result of the parties’ violation of the Court’s Civil Trial Scheduling Order and failure
to prosecute, 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 Pretrial Conference scheduled for
June 7, 2024, and the Trial scheduled for June 25, 2024, are vacated.
IT IS SO ORDERED.

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