Perla v. DMG Asset Management

Filing 29

ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE. Signed by Judge Maria-Elena James on 6/10/2014. (cdnS, COURT STAFF) (Filed on 6/10/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALCIDES VALLADARES PERLA,

Case No. 13-cv-02034-MEJ

Plaintiff,
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ORDER DISMISSING CASE FOR
FAILURE TO PROSECUTE

v.
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DMG ASSET MANAGEMENT,
Defendant.

United States District Court
Northern District of California

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INTRODUCTION

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On May 2, 2013, Plaintiff Alcides Valladares Perla filed the above-captioned case. Dkt.

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No. 1. After the Court issued a Case Management Order on October 2, 2013 (Dkt. No. 26), there

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had been no other docket activity. Accordingly, the Court ordered the parties to file a joint status

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report apprising the Court of the status of case and their compliance with the deadlines set forth in

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the Case Management Scheduling Order. Dkt. No. 27. As no response was received, the Court

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ordered Plaintiff to show cause by June 5, 2014, why this case should not be dismissed for failure

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to prosecute and failure to comply with court deadlines. Dkt. No. 28. The Court provided notice

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to Plaintiff that it may dismiss the case if Plaintiff failed to respond by the deadline. Id. As of the

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date of this Order, Plaintiff has still not responded to either order. Based on this procedural

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history, the Court finds it appropriate to dismiss this case pursuant to Federal Rule of Civil

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Procedure 41(b).

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LEGAL STANDARD
Under Rule 41(b), “the district court may dismiss an action for failure to comply with any

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order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); see also Oliva v.

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Sullivan, 958 F.2d 272, 273-74 (9th Cir. 1992) (district court may dismiss sua sponte for failure to

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meet court deadline). “[T]he district court must weigh the following factors in determining

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whether a Rule 41(b) dismissal is warranted: ‘(1) the public’s interest in expeditious resolution of

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litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4)

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the public policy favoring disposition of cases on their merits; and (5) the availability of less

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drastic sanctions.’” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting

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Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “These factors are ‘not a series of

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conditions precedent before the judge can do anything,’ but a ‘way for a district judge to think

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about what to do.’” In re Phenylpropanolamine (PPA) Products Liab. Litig. (“In re PPA”), 460

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F.3d 1217, 1226 (9th Cir. 2006) (quoting Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051,
1057 (9th Cir. 1998)). Dismissal is appropriate “where at least four factors support dismissal . . .

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United States District Court
Northern District of California

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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).
DISCUSSION

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Here, the Court finds that the Henderson factors support dismissal. First, “the public’s

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interest in expeditious resolution of litigation always favors dismissal.” Yourish v. Cal. Amplifier,

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191 F.3d 983, 990 (9th Cir. 1999). Plaintiff has delayed adjudication of the claims in this case by

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failing to respond to the Court’s orders.

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Second, the Court’s need to manage its docket also weighs in favor of dismissal. Non-

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compliance with procedural rules and the Court’s orders wastes “valuable time that [the Court]

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could have devoted to other . . . criminal and civil cases on its docket.” Ferdik, 963 F.2d at 1261.

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As for the third Henderson factor, the mere pendency of a lawsuit cannot constitute

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sufficient prejudice to require dismissal. Yourish, 191 F.3d at 991. However, “prejudice . . . may .

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. . consist of costs or burdens of litigation.” In re PPA, 460 F.3d at 1228. Moreover, “a

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presumption of prejudice arises from a plaintiff’s unexplained failure to prosecute.” Laurino v.

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Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002). A plaintiff has the burden of

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demonstrating a non-frivolous reason for failing to meet a court deadline. Id.; see also Yourish,

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191 F.3d at 991. Here, Plaintiff has failed to respond to the Court’s Order to Show Cause and has

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not otherwise offered an explanation for the failure to respond to the Court’s May 7 and May 22
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orders. Therefore, the Court concludes that the third Henderson factor also supports dismissal.

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The fourth Henderson factor normally weighs strongly against dismissal. See, e.g.,

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Hernandez, 138 F.3d at 399. “At the same time, a case that is stalled or unreasonably delayed by a

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party’s failure to comply with deadlines . . . cannot move forward toward resolution on the

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merits.” In re PPA, 460 F.3d at 1228. The Ninth Circuit has “recognized that this factor ‘lends

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little support’ to a party whose responsibility it is to move a case toward disposition on the merits

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but whose conduct impedes progress in that direction.” Id. (quoting In re Exxon Valdez, 102 F.3d

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429, 433 (9th Cir. 1996)). Thus, if the fourth Henderson factor weighs against dismissal here, it

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does so very weakly.
Finally, the Court has already attempted less drastic sanctions, without success, and

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United States District Court
Northern District of California

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therefore determines that trying them again would be inadequate or inappropriate. “Though there

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are a wide variety of sanctions short of dismissal available, the district court need not exhaust

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them all before finally dismissing a case.” Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 674

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(9th Cir. 1981). Here, the Court already attempted the lesser sanction of issuing an Order to Show

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Cause and giving Plaintiff an opportunity to explain the failure to respond to its previous order.

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As Plaintiff failed to respond a second time, ordering Plaintiff to respond again is likely to be

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futile. See, e.g., Gleason v. World Sav. Bank, FSB, 2013 WL 3927799, at *2 (N.D. Cal. July 26,

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2013) (finding dismissal under Rule 41(b) appropriate where the court previously attempted the

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lesser sanction of issuing an Order to Show Cause and giving the plaintiff an additional

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opportunity to re-plead). Further, the Order to Show Cause warned Plaintiff of the risk of

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dismissal; thus Plaintiff cannot maintain that the Court has failed in its “obligation to warn the

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plaintiff that dismissal is imminent.” Oliva, 958 F.2d at 274. Thus, the Court finds that the fifth

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factor also weighs in favor of dismissal.

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CONCLUSION
Based on the analysis above, the Court finds that at least four of the five Henderson factors

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weigh in favor of dismissal. Plaintiff failed to respond to either of the Court’s orders. Thus,

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Plaintiff has failed to prosecute this case and dismissal is appropriate. However, a less drastic

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alternative is to dismiss without prejudice. See Ferdik, 963 F.2d at 1262. Dismissal will minimize
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prejudice to Defendant, but dismissing the case without prejudice will preserve Plaintiff’s ability

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to seek relief. Thus, “[i]n an abundance—perhaps overabundance—of caution,” the Court finds

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that dismissal without prejudice is appropriate. Faulkner v. ADT Security Servs., Inc., 706 F.3d

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1017, 1021 (9th Cir. 2013) (remanding to the district court in order to consider whether dismissal

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should have been without prejudice).

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Accordingly, the Court hereby DISMISSES this case WITHOUT PREJUDICE for failure
to prosecute and failure to comply with the Court’s deadlines and orders.
IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: June 10, 2014
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALCIDES VALLADARES PERLA,

Case No. 13-cv-02034-MEJ

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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DMG ASSET MANAGEMENT,
Defendant.

United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on 6/10/2014, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Alcides Valladares Perla
1710 Quint Street
San Francisco, CA 94124

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Dated: 6/10/2014

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Richard W. Wieking
Clerk, United States District Court

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By:________________________
Chris Nathan, Deputy Clerk to the
Honorable MARIA-ELENA JAMES

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