Keltner v Lake

Filing 25

ORDER DISMISSING CASE. Signed by Judge Nandor J. Vadas on 10/16/2015. (njvlc2, COURT STAFF) (Filed on 10/16/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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ALLEN KELTNER,

Case No. 14-cv-05636-NJV

Plaintiff,
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v.

ORDER DISMISSING CASE

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COUNTY OF LAKE, et al.,

United States District Court
Northern District of California

Defendants.
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On August 13, 2015, the court entered a Stipulation and Order (Doc. 21), granting the

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parties‟ request for a modified briefing schedule and to move the hearing on the Motion to

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Dismiss to November 3, 2015. The stipulated briefing schedule required that Plaintiff file his

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response to the Motion to Dismiss on or before August 31, 2015. Plaintiff did not file a response.

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On September 8, 2015, Defendants filed a Reply to Plaintiff‟s Failure to Oppose the Motion to

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Dismiss (Doc. 22), in which Defendants propose the court take Plaintiff‟s failure to file an

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opposition to the Motion as a concession. As of this date, Plaintiff has not responded to the Motion

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to Dismiss, or to Defendants‟ suggestion that Plaintiff has conceded the motion.

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On October 1, 2015, the court issued an Order to Show Cause (Doc. 23), in which the court

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noted that “[i]t appears then that Plaintiff does indeed concede the Motion, or has otherwise

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abandoned this case,” and ordered that Plaintiff, on or before October 9, 2015, show cause as to

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why the court should not dismiss this case for failure to prosecute. Plaintiff was warned that “his

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failure to respond to this order will result in the dismissal of this action.” Plaintiff has again failed

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to respond.

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“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action

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for failure to comply with any order of the court.” Ferdik v. Bonzelet 963 F.2d 1258, 1260 (9th

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Cir. 1992). “In determining whether to dismiss a claim for failure to prosecute or failure to comply

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with a court order, the Court must weigh the following 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 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the

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public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639,

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642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at 1260–61).

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The court finds that these factors support dismissal. First, “[t]he public‟s interest in

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expeditious resolution of litigation always favors dismissal.” Yourish v. California Amplifier, 191
F.3d 983, 990 (9th Cir. 1999). Second, the court‟s need to manage its docket weighs in favor of

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United States District Court
Northern District of California

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dismissal. This case was filed in December of 2014, and through the parties‟ stipulations the

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Motion to Dismiss was filed in July of 2015. Almost three months have passed and Plaintiff has

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made no effort to respond. The court cannot manage its docket when the prosecuting party will

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not participate. Third, the risk of prejudice to the defendants generally requires that “a defendant .

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. . establish that plaintiff‟s actions impaired defendant‟s ability to proceed to trial or threatened to

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interfere with the rightful decision of the case.” Pagtalunan, 291 F.3d at 642. However, “a

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presumption of prejudice arises from a plaintiff‟s unexplained failure to prosecute.” Lamina v.

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Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002). Plaintiff has not overcome this

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presumption and, thus, this factor weighs in favor of dismissal. Fourth, there appears no available

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less drastic alternative. Plaintiff is represented by counsel. Counsel stipulated to an extended

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briefing schedule. After Plaintiff missed the deadline to respond, Defendants filed a Reply

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pointing to Plaintiff‟s failure and suggesting that Plaintiff did not oppose the Motion to Dismiss.

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At that time, Plaintiff could have filed a response to Defendants‟ assertion. The court then issued

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the Show Cause Order, which Plaintiff ignored, despite the warning that failure to respond would

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result in the court‟s order of dismissal. The court finds that there is no available less drastic

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alternative and this factor weighs in favor of dismissal. The fifth factor weighs against dismissal,

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because “[p]ublic policy favors disposition of cases on the merits.” Pagtalunan, 291 F.3d at 643.

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Dismissal is appropriate “where at least four factors support dismissal, . . . or where at least

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three factors „strongly‟ support dismissal.” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th

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Cir. 1998) (quoting Ferdik, 963 F.2d at 1263). Here, four out of five factors support dismissal.

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Accordingly, it is ORDERED that this case is DISMISSED without prejudice for failure to
prosecute.

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The Clerk of the Court shall close the file.

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The matter is referred to the court‟s standing committee on professional conduct.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: October 16, 2015
______________________________________
NANDOR J. VADAS
United States Magistrate Judge

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