Lindsey v. Claremont Middle School

Filing 28

ORDER DISMISSING WITHOUT PREJUDICE Plaintiff's action for failure to prosecute. The Clerk of the Court shall close the file. Signed by Magistrate Judge Laurel Beeler on 4/1/2013. (lblc2, COURT STAFF) (Filed on 4/1/2013)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division JERRY L. LINDSEY, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 No. C 12-02639 LB Plaintiff, v. ORDER DISMISSING WITHOUT PREJUDICE PLAINTIFF’S ACTION 13 14 CLAREMONT MIDDLE SCHOOL (OAKLAND UNIFIED SCHOOL DISTRICT), 15 16 Defendants. _____________________________________/ 17 Pro se plaintiff Jerry L. Lindsey filed this employment discrimination action against “Claremont 18 Middle School (Oakland Unified School District).” Complaint, ECF No. 1 at 1.1 Despite the lack of 19 clarity about whether Lindsey sued Claremont Middle School (“Claremont”) or the Oakland Unified 20 School District (“OUSD”) or both of them (collectively, “Defendants”), the Defendants moved to 21 dismiss Mr. Lindsey’s complaint on October 11, 2012. Motion to Dismiss, ECF No. 11. The court 22 granted Defendants motion to dismiss the complaint without prejudice, and ordered Mr. Lindsey to 23 file a First Amended Complaint. Order, ECF No. 20. Mr. Lindsey filed a First Amended Complaint 24 on December 21, 2012, and on January 4, 2013, Defendants moved to dismiss the First Amended 25 Complaint. FAC, ECF No. 22; Motion to Dismiss FAC, ECF No. 23. On January 29, 2013, the 26 court granted Defendants’s motion to dismiss Mr. Lindsey’s First Amended Complaint, and 27 28 1 Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page number at the top of the document, not the pages at the bottom. C 12-02639 LB ORDER 1 dismissed Mr. Lindsey’s complaint without prejudice, giving him until February 28, 2013, to file a 2 Second Amended Complaint. Order, ECF No. 24. To date, Mr. Lindsey has filed no Second 3 Amended Complaint, and the court has received no further indication that Mr. Lindsey intends to 4 prosecute this action. See generally Docket. 5 A court may dismiss an action based on a party’s failure to prosecute an action. Ferdik v. 6 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). In determining whether to dismiss a claim for 7 failure to prosecute or failure to comply with a court order, the court weighs the following factors: 8 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 9 docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at 1260-61); Ghazali v. Moran, 12 For the Northern District of California alternatives; and (5) the public policy favoring disposition of cases on their merits. Pagtalunan v. 11 UNITED STATES DISTRICT COURT 10 46 F.3d 52, 53 (9th Cir. 1995). These factors are a guide and “are ‘not a series of conditions 13 precedent before the judge can do anything.’” In re Phenylpropanolamine (PPA) Products Liability 14 Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 15 F.3d 1051, 1057 (9th Cir. 1998)). Dismissal is appropriate “where at least four factors support 16 dismissal, . . . or where at least three factors ‘strongly’ support dismissal.” Hernandez v. City of El 17 Monte, 138 F.3d 393, 399 (9th Cir. 1998) (quoting Ferdik, 963 F.2d at 1263). 18 Here, four factors support dismissal. Mr. Lindsey has not filed a Second Amended Complaint, 19 even though it is well past the court’s deadline for doing so. This certainly is not “expeditious 20 litigation,” and the court must keep the cases on its docket moving. There also is no risk of 21 prejudice to the Defendants. Finally, the court already tried to move this case along by issuing an 22 two orders that clearly explained to Mr. Lindsey the deficiencies in his complaint, and gave him 23 leave to file a Second Amended Complaint. 24 In sum, the court concludes that four of the five relevant factors weigh in favor of dismissal. 25 Accordingly, the court DISMISSES WITHOUT PREJUDICE Mr. Lindsey’s action for failure to 26 prosecute. The Clerk of the Court shall close the file. 27 IT IS SO ORDERED. 28 C 12-02639 LB ORDER 2 1 Dated: April 1, 2013 _______________________________ LAUREL BEELER United States Magistrate Judge 2 3 4 5 6 7 8 9 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C 12-02639 LB ORDER 3

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