In Re: Larry Dean Jent

Filing 5

ORDER DISMISSING CASE signed by Judge Kimberly J. Mueller on 12/16/14. CASE CLOSED (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY DEAN JENT,

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No. 2:14-cv-01033 KJM

Appellant,
v.

ORDER

NORTHERN TRUST COMPANY,
Appellee,

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In re: LARRY DEAN JENT,
Debtor.

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On September 15, 2014, the Clerk of the Bankruptcy Court notified this court that

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the record on appeal was incomplete in that it did not include a designation of record, statement

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of issues, reporter’s transcript or notice regarding the transcript. Notice, ECF No. 3.

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On October 2, 2014, this court directed appellant to show cause why the appeal

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should not be dismissed as the result of his failure to pursue it. Order, ECF No. 4. Appellant has

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not responded to the order.

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Before this court can dismiss the appeal for appellant’s failure to prosecute, it must
weigh five factors: “(1) the public's interest in expeditious resolution of litigation; (2) the court's

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need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy

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favoring the disposition of cases on their merits; and (5) the availability of less drastic sanctions.”

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Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1451 (9th Cir. 1994).

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Although the appeal has not been pending long, appellant has taken no steps to

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proceed and has not responded to the court’s order asking for an explanation. His complete

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failure to act suggests the case will not be pursued expeditiously. Appellant’s inaction also

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implicates this court’s ability to manage its docket, because the court will be required to issue

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additional administrative orders and periodically check on the status, if any, of appellant’s efforts.

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The court does not perceive any prejudice to appellee from appellant’s failure to

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act, but “‘the failure to prosecute diligently is sufficient by itself to justify a dismissal, even in the

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absence of a showing of actual prejudice to the defendant from the failure . . . . The law presumes

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injury from unreasonable delay.’” In re Eisen, 31 F.3d at 1452-53 (quoting Anderson v. Air West,

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Inc., 542 F.2d 522, 524 (9th Cir. 1976)). Appellant has not responded to the order to show cause

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and so has not rebutted the presumed prejudice from his delay.

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“Although there is indeed a policy favoring disposition on the merits, it is the

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responsibility of the moving party to move towards that disposition at a reasonable pace, and to

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refrain from dilatory and evasive tactics.” Morris v. Morgan Stanley & Co., 942 F.2d 648, 652

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(9th Cir. 1991); Montague v. Perez, No. CV 13–1677–GHK(CW), 2014 WL 6841694, at *2

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(C.D. Cal. Dec. 2, 2014). Accordingly, the policy favoring resolution of litigation on the merits

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does not outweigh appellant’s failure to take the necessary steps to pursue his appeal.

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Finally, the court has considered and rejected other sanctions. Appellant has done

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nothing since he filed the notice of appeal and has ignored this court’s order, warning him of the

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possibility of dismissal. This factor, in combination with the others considered, favors dismissal.

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IT IS THEREFORE ORDERED that this appeal is dismissed and the case is

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closed.

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DATED: December 16, 2014.

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UNITED STATES DISTRICT JUDGE

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