Johnson v. Madrigal et al

Filing 11

ORDER OF DISMISSING signed by Judge Garland E. Burrell, Jr. on 5/29/2012 ORDERING that this action is DISMISSED and this case shall be CLOSED. CASE CLOSED. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Scott N. Johnson,
Plaintiff,

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v.

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Armando Francisco Madrigal,
Individually and d/b/a Best
Choice Auto; Daniel S. Martin;
Janet Martin,
Defendants.
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2:11-cv-03461-GEB-EFB
ORDER OF DISMISSAL

Plaintiff was required to respond to an Order filed March 29,

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2012,

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Magistrate Judge within forty-five (45) days of the filing of that order

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or showing good cause in writing no later than May 18, 2012, why this

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action should not be dismissed for failure of prosecution. (ECF No. 10.)

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Plaintiff failed to respond to the March 29, 2012 Order by these

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deadlines. Therefore, the Court considers whether this action should be

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dismissed for failure of prosecution.

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by

either

filing

a

motion

for

default

judgment

before

the

When considering whether to dismiss a case for failure to
prosecute, a court must consider:
(1) the public’s interest in expeditious resolution
of litigation; (2) the court’s need to manage its
docket;
(3)
the
risk
of
prejudice
to
defendants/respondents; (4) the availability of
less drastic alternatives; and (5) the public
policy favoring disposition of cases on their
merits.
Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).

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The first and second factors weigh in favor of dismissal in

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this case since Plaintiff’s failure to prosecute has impaired the

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public’s interest in expeditious resolution of litigation and undermines

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the Court’s ability to manage its docket. See Yourish v. Cal. Amplifier,

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191

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expeditious

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Pagtalunan, 291 F.3d at 642 (“It is incumbent upon the Court to manage

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its

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litigants[.]”).

F.3d

983,

(9th

resolution

docket

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990

without

The

Cir.

of

litigation

being

third

1999)(“[T]he

factor

subject

public’s

always

to

favors

routine

concerning

the

interest

in

dismissal.”);

noncompliance

of

risk

of

prejudice

to

excuse

for

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Defendants

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non-compliance. See Pagtalunan, 291 F.3d at 642-43 (“[T]he risk of

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prejudice [is related] to the plaintiff’s reason for defaulting.”).

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Since Plaintiff has provided no reason for his non-compliance, the third

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factor also favors dismissal.

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considers

the

strength

of

a

party’s

The fourth factor concerning whether the Court has considered

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less

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Plaintiff failed respond to the March 29, 2012 Order despite that

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order’s requirement that Plaintiff show cause in writing why the action

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should not be dismissed for failure of prosecution if a motion for entry

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of default judgment was not timely filed. Cf. Ferdik v. Bonzelet, 963

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F.2d 1258, 1262 (9th Cir. 1992)(“[A] district court’s warning to a party

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that his failure to obey the court’s order will result in dismissal can

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satisfy the ‘consideration of alternatives’ requirement.”).

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drastic

sanctions,

The

fifth

also

factor

weighs

in

concerning

favor

the

of

public

dismissal

policy

since

favoring

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disposition

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Pagtalunan, 291 F.3d at 643 (“Public policy favors disposition of cases

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on the merits.”).

of

cases

on

their

merits,

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weighs

against

dismissal.

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Since the balance of the factors strongly favors dismissal of

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this action, this action is dismissed and this case shall be closed.

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Dated:

May 29, 2012

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GARLAND E. BURRELL, JR.
United States District Judge

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