Dan Han v. Alejandro Mayorkas et al

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 information). (Case Terminated. Made JS-6.) (aco)

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

EDCV 24-2391-KK-SPx

Date: March 5, 2025

Title: Dan Han v. Alejandro Mayorkas 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 November 8, 2024, plaintiff Dan Han (“Plaintiff”) filed a Complaint pursuant to the
Administrative Procedure Act (“APA”) and 28 U.S.C. § 1361 seeking an order compelling
defendants Alejandro Mayorkas, Ur M. Jaddou, and Irene Martin (collectively, “Defendants”) to
adjudicate her application for asylum (“Application”) with United States Citizenship and
Immigration Services (“USCIS”). ECF Docket No. (“Dkt.”) 1.
Pursuant to Federal Rule of Civil Procedure 4(m), “[i]f a defendant is not served within 90
days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—
must dismiss the action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure, the court must extend
the time for service for an appropriate period.”
On February 20, 2025, the Court issued an Order to Show Cause (“OSC”) 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 respond by February 27, 2025.
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
response to the OSC.
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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 the 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 February 20, 2025 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 defendants – also weighs in favor of dismissal. A rebuttable
presumption of prejudice to defendants arises when a plaintiff unreasonably delays the 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. However, it is Plaintiff’s responsibility to move toward 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 her
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 she is either unwilling or unable to comply
with court orders by failing to file responsive documents or otherwise cooperating in prosecuting
this action.
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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.

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