Boyko, et al v. Benning Financial Group, et al

Filing 16

ORDER DISMISSING CASE signed by Judge Morrison C. England, Jr on 8/24/12. This action is DISMISSED with prejudice. CASE CLOSED. (Manzer, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GREGORY R. BOYKO, et al.,

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No. 2:10-cv-01011-MCE-KJN

Plaintiffs,
v.

ORDER

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RANDY C. BENNING, et al.,

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Defendants.

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This case was opened on April 26, 2010, and stayed pursuant to order dated August 9,

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2010, because the parties were ordered to arbitration. Since that time, nothing had been filed to

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advise the Court regarding the status of the arbitration proceedings. Accordingly, on July 17,

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2012, this Court issued an Order to Show Cause (“OSC”) as to why this case should not be

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dismissed. Plaintiffs’ counsel responded to the OSC on July 27, 2012, advising the Court that,

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due to cost constraints, Plaintiffs have not yet initiated arbitration. Despite their financial issues,

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however, Plaintiffs are currently on vacation and are unreachable to provide counsel with any

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immediate instructions as how to otherwise proceed.

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Plaintiffs’ response to the OSC is insufficient. Plaintiffs have had two years to initiate

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arbitration. Given the fact that nothing has been done during that two-year period, either to

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arbitrate or litigate this case, the Court now finds dismissal pursuant to Federal Rule of Civil

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Procedure 41(b) for Plaintiffs failure to prosecute this case is justified.
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This Court has the inherent power to dismiss a case, with prejudice, for lack of prosecution. Link

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v. Wabash Railroad Co., 370 U.S. 626, 629-30 (1962). Such a dismissal is authorized by Rule

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41(b), which provides for termination of a lawsuit “for failure of the plaintiff to prosecute,”

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Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991), and by Eastern District of

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California Local Rule 110, which provides that the “[f]ailure of counsel or of a party to comply

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with [the Local Rules] or with any order of the Court may be grounds for imposition by the Court

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of any and all sanctions authorized by statute or Rule or within the inherent power of the Court.”

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Dismissal is largely a matter within the Court’s discretion. Taub v. Hale, 355 F.2d 202 (2d Cir.

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1966). Prior to dismissing an action, however, this Court must consider: “(1) the public’s interest

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

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prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and

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(5) the availability of less drastic alternatives.” Yourish v. California Amplifier, 191 F.3d 983,

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990 (9th Cir. 1999) (quoting Hernandez v. City El Monte, 138 F.3d 393, 399 (9th Cir. 1998)).

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Having considered each of the above factors, this action is hereby DISMISSED with prejudice.

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Fed. R. Civ. P. 41(b); E.D. Cal. Local Rule 110. The Clerk of the Court is directed to close this

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case.

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IT IS SO ORDERED.
DATE: August 24, 2012

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______________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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