Yongming Liu v. George Mihalko et al

Filing 13

MINUTES (In Chambers) Order DISMISSING the Instant Action for Failure to Prosecute by Judge Kenly Kiya Kato. Accordingly, the Court DISMISSES this action without prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute and comply with Court orders. IT IS FURTHER ORDERED that the Clerk of Court shall close this action. (SEE DOCUMENT FOR FURTHER DETAILS.) Case Terminated. Made JS-6. (rolm)

JS-6
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

EDCV 23-2086-KK-SHKx

Date: February 6, 2024

Title: Yongming Liu v. George Mihalko, et al.

Present: The Honorable KENLY KIYA KATO, UNITED STATES DISTRICT JUDGE
Noe Ponce

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for Defendant(s):

None Present

None Present

Proceedings:

(In Chambers) Order DISMISSING the Instant Action for Failure to
Prosecute
I.
PROCEDURAL HISTORY

On October 12, 2023, plaintiff Yongming Liu (“Plaintiff”) filed a Complaint against
defendants George Mihalko and David Radel (collectively, “Defendants”) seeking a Petition for Writ
of Mandamus due to the alleged delay in processing his Application for Asylum by United States
Citizenship and Immigration Services. ECF Docket No. (“Dkt.”) 1, Complaint.
On November 22, 2023, Plaintiff’s matter was reassigned to this Court. Dkt. 8. A
Reassignment Order was issued, which directed, among other actions, that Plaintiff “file a Joint Case
Management Statement within fifteen (15) days of the date of th[e] Order” and permitting separate
statements if the case involved a party proceeding without counsel. Id. at 2.
On January 4, 2024, the Court issued an Order to Show Cause (“OSC”) because Plaintiff
failed to file the required Joint Case Management Statement. Dkt. 9. The Court “warned that
failure to file a timely response may result in [] sanctions including dismissal for failure to prosecute
and/or comply with Court orders.” Id.
On January 25, 2024, the Court issued a second OSC because (1) Plaintiff failed to file a
response to the first OSC, and (2) over 90 days had passed since Plaintiff filed the Complaint and no
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proof of service had been filed. 1 Dkt. 12. The Court, thus, ordered Plaintiff to show cause in
writing on or before February 1, 2024 why this action should not be dismissed for lack of
prosecution. Id. at 1. The Court expressly warned Plaintiff that “failure to timely file a response
to this Order will result in this action being dismissed without prejudice . . . for failure to
prosecute and comply with court orders.” Id. at 2 (citing FED. R. CIV. P. 41(b)) (emphasis in
original).
To date, Plaintiff has not filed a response to the Court’s January 4, 2024 OSC or January 25,
2024 OSC, nor has Plaintiff filed a proof of service demonstrating service of the Summons and
Complaint on Defendants.
II.
DISCUSSION
It is well established that district courts have sua sponte authority to dismiss actions for
failure to prosecute or to comply with court orders. See FED. R. CIV. P. 41(b); Omstead v. Dell,
Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (stating standard applied in dismissal for failure to
prosecute) overruled on other grounds by Langere v. Verizon Wireless Servs., LLC, 983 F.3d 1115,
1117 (9th Cir. 2020); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir.
2005) (stating courts may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) sua
sponte for a plaintiff’s failure to prosecute or comply with the Federal Rules of Civil Procedure or
the court’s orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal for
failure to comply with court orders). In deciding whether to dismiss for failure to prosecute or
comply with court orders, a district court must consider five 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 on their merits; and (5) the
availability of less drastic sanctions.” Omstead, 594 F.3d at 1084 (quoting Henderson v. Duncan,
779 F.2d 1421, 1423 (9th Cir. 1986)).
In the instant action, the first two factors – public interest in expeditious resolution of
litigation and the court’s need to manage its docket – weigh in favor of dismissal. Plaintiff has not
responded to the Court’s January 4, 2024 and January 25, 2024 OSCs or filed proofs of service.
Dkts. 9, 12. This failure to prosecute and follow court orders hinders the Court’s ability to move
this case toward disposition and suggests Plaintiff does not intend to litigate this action diligently.
The third factor – prejudice to defendants – also weighs in favor of dismissal. A rebuttable
presumption of prejudice to defendants arises when a plaintiff unreasonably delays prosecution of
an action. See In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994). Nothing suggests such a
presumption is unwarranted in this case.

1

Generally, absent a showing of good cause, if a defendant is not served within 90 days after
the complaint is filed, the action must be dismissed without prejudice against that defendant. FED.
R. CIV. P. 4(m). In this case, Plaintiff filed the Complaint on October 12, 2023. Dkt. 1. Plaintiff,
was, therefore, required to serve the Summons and Complaint on Defendants no later than January
10, 2024.
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The fourth factor – public policy in favor of deciding cases on the merits – ordinarily weighs
against dismissal. It is Plaintiff’s responsibility, however, to move towards disposition at a
reasonable pace and avoid dilatory and evasive tactics. See Morris v. Morgan Stanley, 942 F.2d 648,
652 (9th Cir. 1991). Plaintiff has not discharged this responsibility despite having been: (1)
instructed on his responsibilities; (2) granted sufficient time in which to discharge them; and (3)
warned of the consequences of failure to do so. See dkts. 9, 12. Under these circumstances, the
policy favoring resolution of disputes on the merits does not outweigh Plaintiff’s failure to obey
court orders or to file responsive documents within the time granted.
The fifth factor – availability of less drastic sanctions – also weighs in favor of dismissal.
The Court cannot move the case toward disposition without Plaintiff’s compliance with court orders
or participation in this litigation. Plaintiff has shown he is either unwilling or unable to comply with
court orders by failing to file responsive documents or otherwise cooperating in prosecuting this
action.
Finally, while dismissal should not be entered unless Plaintiff has been notified dismissal is
imminent, see W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1523 (9th Cir. 1990), the
Court has explicitly warned Plaintiff about the possibility of dismissal, see dkts. 9, 12.
III.
CONCLUSION
Accordingly, the Court DISMISSES this action without prejudice under Federal Rule of
Civil Procedure 41(b) for failure to prosecute and comply with Court orders. IT IS FURTHER
ORDERED that the Clerk of Court shall close this action. (JS-6)
IT IS SO ORDERED.

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