Duran v. Gibson

Filing 12

ORDER to SHOW CAUSE Why Case Should Not Be Dismissed for Plaintiff's Failure to Obey Court Order 11 , signed by Magistrate Judge Erica P. Grosjean on 7/26/16: Thirty Day Deadline to Respond. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PEDRO F. DURAN,

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Plaintiff,
vs.
CONNIE GIPSON, et al.,
Defendants.

1:14-cv-01337-EPG-PC
ORDER TO SHOW CAUSE WHY CASE
SHOULD NOT BE DISMISSED FOR
PLAINTIFF’S FAILURE TO OBEY COURT
ORDER
(ECF No. 11.)
THIRTY DAY DEADLINE TO RESPOND

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On May 13, 2016, the Court issued an order requiring Plaintiff to complete documents

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to initiate service of process and submit the documents to the Court, within thirty days. (ECF

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No. 11.) More than sixty days have passed, and Plaintiff has not submitted the service

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documents or otherwise responded to the Court’s order.

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In determining whether to dismiss this action for failure to comply with the directives

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set forth in its order, “the Court must weigh the following factors: (1) the public’s interest in

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expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

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prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the

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public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d

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639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

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“‘The public’s interest in expeditious resolution of litigation always favors dismissal,’”

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id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the

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action has been pending since August 28, 2014. Plaintiff’s failure to respond to the Court’s

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order may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the Court

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cannot continue to expend its scarce resources assisting a litigant who will not do his part to
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initiate service of process for his lawsuit. Thus, both the first and second factors weigh in favor

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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.” Id. (citing Yourish at 991). However, “delay inherently

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increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and

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it is Plaintiff's failure to return service documents to the Court that is causing delay. Therefore,

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the third factor weighs in favor of dismissal.

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As for the availability of lesser sanctions, at this stage in the proceedings there is little

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available to the Court which would constitute a satisfactory lesser sanction while protecting the

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Court from further unnecessary expenditure of its scarce resources. Plaintiff is proceeding in

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forma pauperis with this action, making monetary sanctions of little use, and given the early

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stage of these proceedings, the preclusion of evidence or witnesses is not available. However,

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inasmuch as the dismissal being considered in this case is without prejudice, the Court is

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stopping short of issuing the harshest possible sanction of dismissal with prejudice.

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Finally, because public policy favors disposition on the merits, this factor will always
weigh against dismissal. Id. at 643.

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ORDER TO SHOW CAUSE

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In light of the foregoing analysis, Plaintiff is HEREBY ORDERED to respond in

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writing to this order, within thirty (30) days from the date of service of this order, showing

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cause why this case should not be dismissed for Plaintiff’s failure to comply with the Court’s

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order issued on May 13, 2016. Failure to respond to this order will result in dismissal of

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this action, without prejudice.

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IT IS SO ORDERED.
Dated:

July 26, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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