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