Valente v. Keller Williams Realty Inc. et al.

Filing 16

ORDER DISMISSING CASE for failure to prosecute and failure to comply with a Court Order signed by Chief Judge Lawrence J. O'Neill on 11/16/2017. CASE CLOSED.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT VALENTE,
Plaintiff,

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v.
KELLER WILLIAMS REALTY, INC., et al.,
Defendants.

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Case No.: 1:17-cv-00218-LJO-JLT
ORDER DISMISSING CASE FOR FAILURE
TO PROSECUTE AND FAILURE TO COMPLY
WITH A COURT ORDER

Robert Valente filed a Complaint in this case on February 15, 2017, alleging many entities

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are liable for civil rights violations, deceit, negligent misrepresentation, constructive fraud,

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negligence, loss of consortium, intentional infliction of emotional distress, and negligent infliction

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of emotional distress related to the purchase of a home in Tennessee. His Complaint was dismissed

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with leave to amend on September 8, 2017, and Plaintiff was given until October 8, 2017 to file an

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amended complaint. (Doc. 6.) The deadline for amendment was later extended to October 25, 2017.

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(Doc. 10 at 5.) Plaintiff was warned that if he “fails to file an amended complaint, the action may be

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dismissed for failure to prosecute and failure to obey the Court’s order.” (Id.)

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Instead of filing an amended complaint, on October 13, 2017, Plaintiff filed a motion to

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transfer venue to the Northern District of California in Oakland, arguing that the transfer is

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appropriate because, among other things, he has moved from within the Eastern District to Oakland.

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(Doc. 11.) On October 23, 2017, this Court denied without prejudice Plaintiff’s motion to transfer
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as “inappropriate under the circumstances because there is no operative, viable complaint in this

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case.” (Doc. 12.) The Court explained that “[u]nless and until Plaintiff files a complaint that states

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viable claims, this Court will not consider transferring his case to another district.” (Id.) Plaintiff

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was given until November 10, 2017 to file an amended complaint. He was specifically warned that

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if he “fails to file an amended complaint by the new deadline, this case will be dismissed without

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prejudice for failure to comply with a Court order.” (Id.) The November 10, 2017 deadline has

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come and gone.

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It is well established that a district court has the authority to dismiss an action because of a

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Plaintiff’s failure to prosecute or to comply with court orders. See Link v. Wabash R. Co., 370 U.S.

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626, 629-30 (1962) (the court’s authority to dismiss for failure to prosecute is necessary in order to

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prevent undue delays in the disposition of pending cases and to avoid congestion in district court

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calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (recognizing that the district

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court may dismiss an action for failure to comply with a court order).

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In determining whether to dismiss a case for failure to prosecute or to comply with court

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orders, a court must consider five factors: (1) the public’s interest in expeditious resolution of

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litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to defendant; (4) the

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

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alternatives. See In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (failure to prosecute); Ferdik, 963

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F.2d at 1260-61 (failure to comply with court orders).

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In this case, the public’s interest in expeditiously resolving this litigation and the Court’s

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interest in managing its docket weigh in favor of dismissal. Plaintiff has failed to respond to the

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Court’s direct order to file an amended complaint. The third factor, the risk of prejudice to

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defendant, also weighs in favor of dismissal because “[t]he law presumes injury from unreasonable

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delay.” In re Eisen, 31 F.3d at 1452 (quoting Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th

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Cir. 1976)). This presumption may be rebutted “if there is a showing that no actual prejudice

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occurred.” Id. at 1452-53. However, Plaintiff offers no excuse or reason for the delay. The fourth

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factor—public policy favoring disposition of cases on their merits—does not outweigh Plaintiff’s

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failure to file an amended complaint that attempts to state viable claims. Finally, a “court’s warning
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to a party that his failure to obey the court’s order will result in dismissal can satisfy the

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‘consideration of alternatives’ requirement.” Ferdik, 963 F.2d at 1262 (quoting Malone v. United

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States Postal Serv., 833 F.2d 128, 132-33 (9th Cir. 1987)). As mentioned, the Court specifically

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warned Plaintiff that if he “fails to file an amended complaint by the new deadline, this case will be

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dismissed without prejudice for failure to comply with a Court order.” Accordingly, the

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“consideration of alternatives” requirement is satisfied. Id.

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In sum, the above factors weigh in favor of dismissal for failure to prosecute and failure to
comply with a Court order.
CONCLUSION AND ORDER

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For the reasons discussed above, this Court:

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1. DISMISSES without prejudice Plaintiff’s claims for failure to prosecute and

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failure to comply with a Court order; and

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2. DIRECTS the clerk to close this action.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

November 16, 2017

UNITED STATES CHIEF DISTRICT JUDGE

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