Lotenero v. Everett Financial Inc., dba Supreme Lending, a Texas Corporation et al

Filing 51

ORDER DISMISSING and DIRECTING the Clerk of the Court to Close the Case, signed by District Judge Anthony W. Ishii on 4/4/2014. CASE CLOSED. (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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1:11-cv-200-AWI-BAM

DOROTHY LOTENERO,
Plaintiff,

ORDER DISMISSING AND
DIRECTING THE CLERK OF THE
COURT TO CLOSE THE CASE

v.
JESSEE ALVIN CRIPPS, SR.,
Defendant.
__________________________________/

I. Background
On January 7, 2013 Plaintiff Dorthy Lotenero (“Plaintiff”) moved for default judgment

19 against Defendant Jesse Alvin Cripps, Sr. (“Defendant”) (Doc. 45.). The Honorable Magistrate
20 Judge Barbara McAuliffe denied the motion for default judgment on February 26, 2013.
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Since the denial of default judgment there has been no activity in this case by either

22 party. This Court gave notice on September 6, 2013, of a hearing to address the lack of

23 prosecution set for October 15, 2013. Neither party appeared at the scheduled hearing date.
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II. Discussion
Federal Rule of Civil Procedure 41(b), in relevant part, provides, AIf a plaintiff fails to

26 prosecute or to comply with these rules or a court order, a defendant may move to dismiss the
27 action or any claim against it.@ Fed. R. Civ. Pro. 41(b). Although the language indicates that
28 Rule 41(b) is applicable upon motion by the defendant, Acourts may dismiss under Rule 41(b)
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1 sua sponte, at least in some circumstances.@ Hells Canyon Preservation Council v. United States
2 Forest Service, 403 F.3d 683, 689 (9th Cir. 2005) (citing Olsen v. Maples, 333 F.3d 1199, 1204
3 n.3 (10th Cir. 2003)).
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ADistrict courts have the inherent power to control their dockets and in the exercise of that

5 power they may impose sanctions including, where appropriate, dismissal of a case.=@ Bautista v.
6 Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Ferdik v. Bonzelet, 963 F.2d 1258, 1260
7 (9th Cir. 1992); Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir.

8 1986).
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A court may dismiss an action with prejudice based on a party=s failure to prosecute an

10 action. See, e.g., In re Eisen, 31 F.3d 1447, 1456 (9th Cir. 1994) (dismissal for lack of
11 prosecution); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of
12 prosecution and failure to comply with Local Rules). In determining whether to dismiss an action
13 for lack of prosecution the court must consider several factors, including: (1) the public=s interest
14 in expeditious resolution of litigation; (2) the court=s need to manage its docket; (3) the risk of
15 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits;
16 and (5) the availability of less drastic alternatives. Pagtalunan v. Galaza, 291 F.3d 639, 642-43
17 (9th Cir. 2002); Bautista, 216 F.3d at 841; In re Eisen, 31 F.3d at 1451; Ferdik, 963 F.2d at
18 1260-61; Henderson, 779 F.2d at 1424; Thompson, 782 F.2d at 831.
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In the case at hand, the public's interest is in resolving this litigation. See Yourish v.

20 California Amplifier, 191 F.3d 983, 990 (9th Cir.1999) (“The public's interest in expeditious
21 resolution of litigation always favors dismissal”). Similarly, the Court's has an interest in
22 managing its docket, given that the Eastern District of California is one of the busiest federal

23 jurisdictions in the United States and its District Judges carry some of the heaviest caseloads in
24 the nation. Because Plaintiff has shown no interest in prosecuting her claims, failed to oppose
25 dismissal, and failed to appear at the scheduled hearing, the Court's interest in managing its
26 docket weighs in favor of dismissal. See Ferdik, 963 F.2d at 1261 (recognizing that district
27 courts have inherent interest in managing their dockets without being subject to noncompliant
28 litigants). In addition, the risk of prejudice to the defendants weighs in favor of dismissal, since a
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1 presumption of injury arises from the occurrence of unreasonable delay in prosecution of an
2 action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir.1976).
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The Court has given notice that a failure to oppose dismissal by September 23, 2013

4 would result in dismissal. No opposition was filed. The Court’s warning satisfies the
5 requirement that the Court consider less drastic measures. Ferdik, 963 F.2d at 1262; Henderson,
6 779 F.2d 1421, 1424 (9th Cir. 1986).
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III. Order
Based on the foregoing, this case is ordered DISMISSED with prejudice. The Clerk of

9 the Court is directed to CLOSE the case.
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IT IS SO ORDERED.

12 Dated: April 4, 2014
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SENIOR DISTRICT JUDGE

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