Smith v. Nevada County Treasurer and Tax Collector et al

Filing 22

ORDER signed by Judge Kimberly J. Mueller on 5/20/15 ORDERING that this action is dismissed without prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b). The Clerk of the Court is directed to close the case. CASE CLOSED(Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENT H. SMITH,

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No. 2:14-cv-01324-KJM-KJN

Plaintiff,
v.

ORDER

NEVADA COUNTY TREASURER AND
TAX COLLECTOR, and RYAN MILLER,
Defendants.

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On March 4, 2015, this court granted plaintiff’s counsel’s motion to withdraw and

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granted plaintiff thirty (30) days in which to hire new counsel or indicate his intent to proceed pro

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se. (ECF No. 19.) Plaintiff did not respond within the thirty days. In a minute order dated April

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10, 2015 (ECF No. 20) and served on plaintiff by mail, plaintiff was given additional time in

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which to inform the court of his intent to proceed pro se. The April 2015 order cautioned that

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failure to submit a status report by April 23, 2015, could result in sanctions. Plaintiff has not

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responded to the court’s order.

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The Local Rules of this district provide that “[f]ailure of counsel or of a party to

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comply with these Rules or with any order of the Court may be grounds for imposition by the

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

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Court.” E.D. Cal. L.R. 110. A court must weigh five factors in determining whether to dismiss a
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case for failure to prosecute, failure to comply with a court order, or failure to comply with a

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district court’s local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.1992).

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Specifically, the court must consider: (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 the defendants; (4)

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

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drastic alternatives. Id. at 1260–61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642–43 (9th

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Cir. 2002); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995).

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On balance, the factors support dismissal. The court attempted less drastic

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measures by requesting plaintiff inform the court of an intent to continue the action, either pro se

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or with new representation. In its second order, the court provided notice that a failure to respond

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could lead to sanctions. Plaintiff twice has not responded to court orders. The lack of response

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indicates that any other potential action, such as the imposition of monetary sanctions or an

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additional request for response, would be futile. The remaining defendant, Ryan Miller, has not

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yet appeared. In light of the absence of any suggestion plaintiff intends to continue pursuing his

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action, the court finds dismissal is appropriate.

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Accordingly, IT IS HEREBY ORDERED that this action is dismissed without

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prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b). The Clerk of the Court is directed to close

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the case.

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IT IS SO ORDERED.
DATED: May 20, 2015.

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UNITED STATES DISTRICT JUDGE

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