Damien A. Doney v. General Motors Company

Filing 10

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)

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

EDCV 24-1601-KK-RAOx

Date: November 13, 2024

Title: Damien A. Doney v. General Motors Company

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 July 30, 2024, plaintiff Damien A. Doney (“Plaintiff”) filed a Complaint against
defendant General Motors Company (“Defendant”) raising claims for motor vehicle product
liability. ECF Docket No. (“Dkt.”) 1.
On November 1, 2024, the Court issued an Order to Show Cause (“OSC”) as to why the
action should not be dismissed for failure to prosecute because Plaintiff had not filed a proof of
service of the Summons and Complaint. Dkt. 9. The Court ordered Plaintiff to file a response by
November 8, 2024. Id. The Court warned Plaintiff that “failure to file a timely response will result
in dismissal for failure to prosecute and/or comply with Court orders.” Id.
To date, Plaintiff has not filed a proof of service of the Summons and Complaint or a
response to the Court’s November 1, 2024 OSC. Additionally, the Court has not received any
communications from Plaintiff since July 30, 2024.
///
///
Page 1 of 3

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk NP

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 November 1, 2024 OSC. Dkt. 9. 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 Defendant – also weighs in favor of dismissal. A rebuttable
presumption of prejudice to the defendant 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.
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 dkt. 9. 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.

Page 2 of 3

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk NP

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 dkt. 9.
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.

Page 3 of 3

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk NP