Purvis et al v. Terman Apartments et al

Filing 109

ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE. Signed by Judge Jon S. Tigar on 8/5/13. (jstlc3, COURT STAFF) (Filed on 8/5/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KAREN P., et al.,

Case No. 12-cv-00256-JST

Plaintiffs,
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v.

ORDER DISMISSING CASE WITH
PREJUDICE

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TERMAN APARTMENTS, et al.,

Re: ECF Nos. 104, 108

Defendants.

United States District Court
Northern District of California

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The Court previously dismissed all claims in this action for housing discrimination and

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related claims. Plaintiffs have failed to file an amended complaint. Because Plaintiffs have not

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justified their failure to prosecute this action, the action is DISMISSED WITH PREJUDICE.
I.

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BACKGROUND

Karen P., Abdirahman Guleed, and R.P., all of whom are appearing pro se, are former

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tenants of Terman Apartments, a housing complex run by Defendants Terman and Goldrich.

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Compl. ¶¶ 4, 6, ECF No. 10. This action arises out of Plaintiffs’ eviction from Terman

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Apartments.

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Plaintiffs brought seven claims against Defendants Terman, Goldrich, and the United

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States Department of Housing and Urban Development: (1) housing discrimination in violation of

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the Fair Housing Amendments Act (“FHAA”); (2) violations of the Servicemembers Civil Relief

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Act (“SCRA”); (3) “assault and battery on a minor;” (4) defamation; (5) negligence; (6) “long

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time exposure to mold and sevier [sic] gas leak;” and (7) intentional infliction of emotional

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distress. ECF No. 10.

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On May 17, 2013, the Court granted three motions to dismiss brought by Defendants. ECF

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No. 103. The Court dismissed with prejudice Plaintiffs’ SCRA claim on the ground that the claim

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is barred by res judicata because it was previously litigated in an unlawful detainer action in state

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court. Id. at 7-8. The Court also dismissed without prejudice the rest of the claims in the

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complaint under Rule 12(b)(6) and granted Plaintiffs leave to file an amended complaint no later

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than June 17, 2013. Id. at 15. In that order, the Court encouraged Plaintiffs to seek the assistance

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of the Legal Help Center in amending their complaint. Id.

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Plaintiffs failed to file an amended complaint by July 17, 2013.

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On July 1, 2013, the Court issued an order to show cause why this action should not be

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dismissed for failure to prosecute. ECF No. 104. In that order, the Court required Plaintiffs to file

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by July 31, 2013, either a statement explaining why the action should not be dismissed for failure

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United States District Court
Northern District of California

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to prosecute or an amended complaint. Id.
Plaintiffs did not file an amended complaint by that date. Instead, they filed a statement in

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which they appear to (1) object to the reassignment of this action from San Jose to San Francisco

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on the ground that such reassignment was done “without notice or hearing”; (2) object to the

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Court’s resolution of Defendants’ motion to dismiss without oral argument; and (3) object to the

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Court’s dismissal of their SCRA claim on the ground that the dismissal “was in error.” ECF No.

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108. Plaintiffs request further leave to amend the complaint on the ground that they “can prove

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the facts in support of the claim which would entitle Plaintiffs’ relief.” Id. at 4. Plaintiffs,

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however, neither explain why they have been unable to file an amended complaint thus far nor

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demonstrate that they would be able to allege sufficient facts with respect to the claims that the

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Court dismissed without prejudice on May 17, 2013.

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II.

LEGAL STANDARD

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“A district court may sua sponte dismiss an action for failure to prosecute.” McKeever v.

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Block, 932 F.2d 795, 797 (9th Cir. 1991). A district court “is required to weigh several factors in

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determining whether to dismiss a case for lack of prosecution. These factors include: (1) the

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public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket;

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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on

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their merits and (5) the availability of less drastic sanctions. There must also be a showing of

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unreasonable delay. The district court is not required to make explicit findings on the essential
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factors.” Al-Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996) (internal citations and

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quotation marks omitted). Dismissal is appropriate “where at least four factors support dismissal .

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. . or where at least three factors strongly support dismissal.” Hernandez v. City of El Monte, 138

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F.3d 393, 399 (9th Cir. 1998) (citation and internal quotation marks omitted).
III.

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DISCUSSION

The Court concludes that four of the five factors discussed above strongly support the

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dismissal of this action for failure to prosecute.

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A.

Expeditious Resolution of Litigation and the Court’s Need to Manage Its Docket
The first two factors, namely the public’s interest in expeditious resolution of litigation and

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the court’s need to manage its docket, relate to “the efficient administration of judicial business for

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United States District Court
Northern District of California

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the benefit of all litigants with cases pending.” Nealey v. Transportacion Maritima Mexicana, S.

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A., 662 F.2d 1275, 1279 (9th Cir. 1980).
Here, Plaintiffs’ delay in filing an amended complaint has completely stalled this action,

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thereby depriving the Court of the ability to control the pace of the docket. Plaintiffs have not

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justified this delay. In their response to the Court’s order to show cause, Plaintiffs (1) object to the

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reassignment of this action from San Jose to San Francisco on the ground that such reassignment

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was done “without notice or hearing”; (2) object to the Court’s resolution of Defendants’ motion

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to dismiss without holding a hearing; and (3) object to the Court’s dismissal of the SCRA claim on

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the ground that such a dismissal was “was in error.” ECF No. 108. None of these objections have

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merit.

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First, Plaintiffs were aware that this action was reassigned to San Francisco, as they filed a

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case management statement with this Court fifteen days after the action was reassigned. See ECF

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No. 78, 94. Second, a district court has the discretion to resolve any motion without oral

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argument. See Civil L.R. 7-1(b). Plaintiffs were sent notice via mail that this Court vacated the

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hearing on Defendants’ motions to dismiss. See ECF No. 101. Plaintiffs did not subsequently file

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any objections to the Court’s decision to take the motions under submission without oral

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argument. Third, Plaintiffs’ contention that the Court’s dismissal of their SCRA claim “was in

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error” is not well taken because they have provided no support for their assertion.
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Accordingly, these factors weigh strongly in favor of dismissal.

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B.

Prejudice to Defendants
The third factor, the risk of prejudice to the defendant, relates to “the plaintiff’s reason for

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defaulting in failing to timely amend.” Yourish v. California Amplifier, 191 F.3d 983, 991 (9th

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Cir. 1999). “[A]presumption of prejudice arises from the plaintiffs’ failure to prosecute.”

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Hernandez v. City of El Monte, 138 F.3d 393, 400 (9th Cir. 1998). A plaintiff may rebut this

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presumption only “with an excuse for his delay that is anything but frivolous.” Nealey, 662 F.2d

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at 1281.
Here, as discussed above, Plaintiffs provide no valid excuse for their delay in filing an

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United States District Court
Northern District of California

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amended complaint. Accordingly, this factor also weighs in favor of dismissal.

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C.

Public Policy Favoring Disposition of Cases on their Merits
The fourth factor concerns the public policy favoring disposition of cases on their merits,

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which “strongly counsels against dismissal.” In re Phenylpropanolamine (PPA) Prods. Liab.

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Litig., 460 F.3d 1217, 1228 (9th Cir. 2006). Nevertheless, the Ninth Circuit has recognized that “a

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case that is stalled or unreasonably delayed by a party’s failure to comply with deadlines and

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discovery obligations cannot move forward toward resolution on the merits.” Id. at 1228. For this

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reason, “this factor lends little support to a party whose responsibility it is to move a case toward

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disposition on the merits but whose conduct impedes progress in that direction.” Id. (citations and

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internal quotation marks omitted).
Here, Plaintiffs’ delay in filing an amended complaint has prevented the case from moving

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toward disposition on the merits. Thus, this factor is neutral at best.

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D.

Less Drastic Sanctions

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Finally, the fifth factor pertains to the availability of less drastic sanctions. “These less

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drastic alternatives include allowing further amended complaints, allowing additional time, or

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insisting that appellant associate experienced counsel.” Nevijel v. N. Coast Life Ins. Co., 651 F.2d

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671, 674 (9th Cir. 1981). “Though there are a wide variety of sanctions short of dismissal

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available, the district court need not exhaust them all before finally dismissing a case.” Id.
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Here, the Court has given Plaintiffs two opportunities to file an amended complaint, has

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afforded Plaintiffs with additional time to prosecute the action, and has encouraged Plaintiffs to

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seek the assistance of the Legal Help Center in litigating their claims. Moreover, the Court has

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warned Plaintiffs twice of the possibility of dismissal. These opportunities and warnings are

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sufficient to establish that the Court has considered sanctions short of dismissal. See In re

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Phenylpropanolamine, 460 F.3d at 1229 (“Warning that failure to obey a court order will result in

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dismissal can itself meet the ‘consideration of alternatives’ requirement.”) (citation omitted).

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Accordingly, given that the Court has exhausted all reasonable alternatives to dismissal, the Court

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concludes that the dismissal of this action with prejudice is appropriate at this point.
IV.

United States District Court
Northern District of California

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CONCLUSION

This action is dismissed with prejudice for failure to prosecute. The Clerk shall terminate
the case.
IT IS SO ORDERED.
Dated: August 5, 2013

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______________________________________
JON S. TIGAR
United States District Judge

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