Hopson v. Marie Callender's Pie Shops, Inc. et al

Filing 6

ORDER signed by Judge Kimberly J. Mueller on 6/10/2015 ORDERING that this case is DISMISSED without prejudice. CASE CLOSED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CYNTHIA HOPSON,

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No. 2:14-cv-02898-KJM-CKD

Plaintiff,
v.

ORDER

MARIE CALLENDAR’S PIE SHOPS,
Inc., et al.
Defendants.

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Plaintiff Cynthia Hopson filed a complaint on December 12, 2014, alleging

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violations of the Americans with Disability Act and the California Disabled Persons and Unruh

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Acts. The case was set for a pretrial scheduling conference on April 16, 2015, but the date was

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reset because the parties had not filed a joint status report. Defendants have not yet appeared in

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this action and as of today’s date, no further action has been taken by plaintiff to litigate this case.

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On April 29, 2015, the court ordered Ms. Hopson to show cause, within fourteen

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days, why this case should not be dismissed for her failure to prosecute under Federal Rule of

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Civil Procedure 41(b). ECF No. 5. She has filed no response.

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“District courts have inherent power to control their dockets. In the exercise of

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that power they may impose sanctions including, where appropriate, default or dismissal.”

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Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986) (citing Link v.
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Wabash Rr. Co., 370 U.S. 626 (1961). Sua sponte dismissal for failure to prosecute is a decision

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within this court’s discretion. Oliva v. Sullivan, 958 F.2d 272, 273 (9th Cir. 1992). Whether

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dismissal is appropriate depends on application of several factors: “(1) the public’s interest in

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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 sanctions.” Thompson, 782 F.2d at 831.

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These factors weigh in favor of dismissal without prejudice. The first and second

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factors favor dismissal. Ms. Hopson has not taken action in response to the court’s order to show

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cause, and has not evidenced her intent to move the case forward. The third factor also favors

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dismissal because defendants face exposure as long as the case is pending. The fifth factor also

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favors dismissal. The court provided warning of its intent to dismiss the action, allowed a

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response showing cause why dismissal was not an appropriate sanction, and Ms. Hopson did not

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respond. Only the fourth factor weighs against dismissal; however, without the presence of a

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defendant, without any responsive pleading or discovery, and in the absence of a request or

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motion for a clerk’s default and default judgment, resolution on the merits appears unlikely.

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This case is DISMISSED without prejudice. CASE CLOSED.

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IT IS SO ORDERED.

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DATED: June 10, 2015.

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UNITED STATES DISTRICT JUDGE

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