Myers v. City of Madera et al

Filing 52

ORDER DISMISSING ACTION, signed by Chief Judge Anthony W. Ishii on 9/2/11. CASE CLOSED. (Verduzco, M)

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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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STEPHEN MYERS,
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Plaintiff,
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v.
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CITY OF MADERA, et al.,
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Defendants.
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____________________________________)

1:10-CV-01398 AWI JLT
ORDER DISMISSING ACTION

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BACKGROUND
On June 9, 2011, the Court dismissed Plaintiff’s First Amended Complaint and ordered

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Plaintiff to file a Second Amended Complaint within twenty-one (21) days. Plaintiff has not

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filed a Second Amended Complaint. Plaintiff has also not contacted the Court.

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LEGAL STANDARD
A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an

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action or failure to obey a court order. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.

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1992). In determining whether to dismiss an action for lack of prosecution a court must

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consider several factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the

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court’s need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the

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availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on

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their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at

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1260-61); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). “These factors are ‘not a series of

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conditions precedent before the judge can do anything,’ but a ‘way for a district judge to think

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about what to do.’” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d

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1217, 1226 (9th Cir. 2006) (quoting Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057

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(9th Cir. 1998)).

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DISCUSSION

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The Court finds that dismissal for Plaintiff’s failure to prosecute is appropriate in this

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action. “The public’s interest in expeditious resolution of litigation always favors dismissal.”

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Pagtalunan, 291 F.3d at 642; Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999).

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The Court cannot manage its docket if it maintains cases in which a plaintiff fails to litigate his

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case. The Court’s limited resources must be spent on cases in which the litigants are actually

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proceeding. Thus, both the public’s interest in expeditiously resolving this litigation and the

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Court’s interest in managing the docket weigh in favor of dismissal.

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Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in

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and of itself to warrant dismissal.” Pagtalunan, 291 F.3d at 642; Yourish, 191 F.3d at 991.

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However, delay inherently increases the risk that witnesses’ memories will fade and evidence

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will become stale. Pagtalunan, 291 F.3d at 642. Defendants have sought to dismiss this action.

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See Doc. 47. Defendants do not appear to have any remaining interest in litigating this action.

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As such, any risk of prejudice to Defendants is absent.

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As for the availability of lesser sanctions, there is little available to the Court which

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would constitute a satisfactory lesser sanction while protecting the Court from further

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unnecessary expenditure of its scare resources. The Court’s warning “that failure to obey a court

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order will result in dismissal can itself meet the ‘consideration of alternatives’ requirement.” In

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re PPA, 460 F.3d at 1229; Estrada v. Speno & Cohen, 244 F.3d 1050, 1057 (9th Cir. 2001).

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Here, Plaintiff has been warned that dismissal for lack of prosecution would result if appropriate

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documents were not submitted. The availability of less drastic sanctions has been

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considered, but given that Plaintiff did not comply with the Court’s order and did not contact the

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Court, the Court has no effective sanction but to close the case.

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Finally, because public policy favors disposition on the merits, this factor normally

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weighs against dismissal. Pagtalunan, 291 F.3d at 643. “At the same time, a case that is stalled

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or unreasonably delayed by a party’s failure to comply with deadlines and discovery obligations

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cannot move forward toward resolution on the merits. Thus, [the Ninth Circuit has] also

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recognized that this factor ‘lends little support’ to a party whose responsibility it is to move a

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case toward disposition on the merits but whose conduct impedes progress in that direction.”

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In re PPA, 460 F.3d at 1228. The Court concludes that this factor has little weight in an action

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such as this one where the Plaintiff has essentially abandoned the case and has been unable or

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unwilling to proceed with the action. Thus, the Court finds that dismissal is appropriate in this

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action.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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This action is DISMISSED; and

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The Clerk of the Court is DIRECTED to close the case.

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IT IS SO ORDERED.

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Dated:
0m8i78

September 2, 2011
CHIEF UNITED STATES DISTRICT JUDGE

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