Hopson v. Waterway Creations, Inc. et al

Filing 15

DISMISSAL ORDER signed by Judge Garland E. Burrell, Jr. on 3/4/2015 ORDERING that this case is DISMISSED without prejudice. CASE CLOSED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CYNTHIA HOPSON,

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2:14-cv-01223-GEB-KJN

Plaintiff,

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No.

v.

DISMISSAL ORDER

WATERWAY CREATIONS, INC.;
CUSTOMERS FIRST ENTERPRISES,
INC.; and DOES 1-10,
inclusive,
Defendants.*

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The January 22, 2015 Order to Show Cause and Continuing

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Status (Pretrial Scheduling) Conference required Plaintiff, no

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later than January 30, 2015, “to show cause why this action

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should not be dismissed under Federal Rule of Civil Procedure 41

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for failure to prosecute.” (OSC 2:9-17, ECF No. 11.) Plaintiff

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filed this action on May 19, 2014, and no Defendant has appeared.

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Further,

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(“OSC”) for the failure to timely file a status report, Plaintiff

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has not filed a status report in this action.

despite

the

issuance

of

three

Orders

to

Show

Cause

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*

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The caption has been amended according to the voluntary dismissal of
Defendants Joseph Mangelos and Mangelos Brothers, Inc. (See Pl.‟s Notice of
Dismissal, ECF No. 12.)

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Plaintiff‟s counsel filed a response to the January 22,
2015 OSC, in which he declares, in relevant part:

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Since none of the Defendants had made an
appearance in the lawsuit . . . , Plaintiff
did not want to file any entry of defaults as
Plaintiff wished to amend the complaint.
Plaintiff desired to file a motion to
supplement
the
complaint
to
add
new
defendants, DON LEE, and, KEN HILDENBRAND,
and . . . slander and defamation causes of
action before filing [a] status report.
Plaintiff was attempting to gain evidence
before making a motion for such an amendment.

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. . . .

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. . . . I . . . ask that this court at least
give plaintiff one last final thirty days to
file an amended complaint and attempt to reserve the remaining defendants with the
amended complaint before dismissing the case
for failure to prosecute.
(Pl.‟s Resp. to OSC && 13, 16, ECF No. 13.)

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Notwithstanding the referenced request, Plaintiff has

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not filed a motion seeking leave to amend, and Plaintiff, for the

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fourth time, failed to timely file a status report. Therefore,

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the Court considers whether this action should be dismissed for

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failure to prosecute. Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir.

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1984) (“It is within the inherent power of the court to sua

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sponte dismiss a case for lack of prosecution.”).

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When considering whether to dismiss a party 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

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dismissal in this case since Plaintiff‟s failure to prosecute the

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action

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resolution of litigation and undermines the Court‟s ability to

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manage its docket. See Yourish v. Cal. Amplifier, 191 F.3d 983,

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990

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resolution of litigation always favors dismissal.”); Pagtalunan,

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

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docket

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has

(9th

impaired

Cir.

the

1999)

without

(“The

being

public‟s

interest

public‟s

subject

to

in

interest

routine

expeditious

in

expeditious

noncompliance

of

litigants . . . .”).

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The third factor concerning the risk of prejudice to

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Defendants considers the strength of a party‟s excuse for non-

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compliance. See Pagtalunan, 291 F.3d at 642-43 (indicating “the

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risk of prejudice” is related to Plaintiffs‟ reason for failing

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to prosecute). Since Plaintiff has provided no reason for her

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continued failure to prosecute the action, the third factor also

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favors dismissal.

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The

fourth

less

factor

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the warning that the action could be dismissed as a result. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (“[A]

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district court‟s warning to a party that his failure to obey the

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court‟s

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„consideration

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dismissal is without prejudice. See Ash, 739 F.3d at 496-97 (9th

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Cir. 1984) (indicating dismissal without prejudice “is a more

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easily justified sanction for failure to prosecute”).

of

alternatives‟

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dismissal

in

favor

has

dismissal since Plaintiff failed to prosecute this action despite

in

weighs

Court

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result

also

the

considered

will

sanctions,

whether

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order

drastic

concerning

of

can

satisfy

the

requirement.”).

Further,

the

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The fifth factor concerning the public policy favoring

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disposition of cases on their merits, weighs against dismissal.

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

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cases on the merits.”).

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Since

the

balance

of

the

factors

strongly

favors

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dismissal, this action is dismissed without prejudice. The Clerk

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of the Court shall close this action.

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Dated:

March 4, 2015

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