Hollin v. City and County of San Francisco et al

Filing 25

ORDER DISMISSING CASE. Signed by Judge James Donato on 9/3/14. (lrcS, COURT STAFF) (Filed on 9/4/2014)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

OSCAR DWIGHT HOLLIN, JR.,

Case No. 14-cv-01609-JD

Plaintiff,
8
v.

ORDER DISMISSING CASE FOR
FAILURE TO PROSECUTE

9
10

United States District Court
Northern District of California

11

CITY AND COUNTY OF SAN
FRANCISCO, et al.,
Defendants.

12
INTRODUCTION

13
14

Defendants City and County of San Francisco (“CCSF”) and Mohammed Nuru filed a

15

Motion to Dismiss Plaintiff Oscar Dwight Hollin, Jr.’s Complaint. See Dkt. No. 8. Mr. Hollin,

16

who is litigating this action pro se, did not file a response to CCSF and Mr. Nuru’s motion. The

17

Court vacated the hearing on the motion and issued an Order to Show Cause why the Motion to

18

Dismiss should not be granted. Dkt. Nos. 21, 22. The Order to Show Cause required Mr. Hollin

19

to respond by July 14, 2014, and stated that his failure to respond could result in this case being

20

dismissed for failure to prosecute. Dkt. No. 21. Mr. Hollin did not respond to the Order to Show

21

Cause. On July 22, 2014, the Court granted CCSF and Mr. Nuru’s Motion to Dismiss and

22

dismissed this case -- without prejudice -- for failure to prosecute. Dkt. No. 24. Mr. Hollin was

23

ordered to file an amended complaint within 30 days or the Court would dismiss this case with

24

prejudice for failure to prosecute. Id. Because no amended complaint was filed in that period, this

25

case is dismissed with prejudice.

26
27
28

DISCUSSION
Federal Rule of Civil Procedure 41(b) provides the Court with authority to dismiss a case
for failure to comply with any of its orders. Fed. R. Civ. P. 41(b); see Ferdik v. Bonzelet, 963 F.2d

1

1258, 1260 (9th Cir. 1992). “In determining whether to dismiss a claim for failure to prosecute or

2

failure to comply with a court order, the Court must weigh the following factors: (1) the public’s

3

interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3) the

4

risk of prejudice to the defendants/respondents; (4) the availability of less drastic alternatives; and

5

(5) the public policy favoring disposition of cases on their merits.” See Espinosa v. Washington

6

Mut. Bank, No. C 10-04464 SBA, 2011 WL 334209, at *1 (N.D. Cal. Jan. 31, 2011) (citing

7

Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002)).

8

These factors weigh in favor of dismissal. Mr. Hollin did not respond to CCSF and Mr.

9

Nuru’s Motion to Dismiss in compliance with the Local Rules, failed to respond to the Court’s
Order to Show Cause, and then failed to file an amended complaint. With respect to the first

11
United States District Court
Northern District of California

10

factor, “[t]he public’s interest in expeditious resolution of litigation always favors dismissal.” Id.

12

(citing Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). For the second factor, the

13

Court must be able to manage its docket “without being subject to routine noncompliance of

14

litigants.” Pagtalunan, 291 F.3d at 642; see also Ferdik, 963 F.2d at 1261 (discussing that non-

15

compliance with a court’s order diverts “valuable time that [the court] could have devoted to other

16

major and serious criminal and civil cases on its docket.”). For the third factor, due to Mr.

17

Hollin’s failure to respond to either the Motion to Dismiss, this Court’s Order to Show Cause, or

18

file an amended complaint, he has offered no explanation for his failure. This weighs strongly in

19

favor of dismissal. See Espinosa, 2011 WL 334209, at *2. With respect to the fourth factor, the

20

Court gave Mr. Hollin an opportunity to file an amended complaint even despite his failure to

21

respond to the motion to dismiss or the Court’s Order to Show Cause. See Dkt. No. 24. This is

22

sufficient to satisfy the consideration of less drastic sanctions requirement. See Ferdik, 963 F.2d

23

at 1262. Although the fifth factor -- the public policy favoring disposition of cases on their merits

24

-- might weigh against dismissal on its own, the cumulative weight of the other factors overrides

25

it. See Pagtalunan, 291 F.3d at 643 (finding district court did not abuse its discretion in

26

dismissing case where three of the five factors weighed in favor of dismissal).

27
28
2

CONCLUSION

1
2

Because Mr. Hollin was notified that his failure to file an amended complaint would lead

3

to dismissal of this case with prejudice for failure to prosecute, and he failed to file an amended

4

complaint within the time period allowed by the Court, the case is dismissed with prejudice for

5

failure to prosecute under Federal Rule of Civil Procedure 41(b).

6
7
8
9

IT IS SO ORDERED.
Dated: September 3, 2014
______________________________________
JAMES DONATO
United States District Judge

10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

OSCAR DWIGHT HOLLIN, JR.,

Case No. 14-cv-01609-JD

Plaintiff,
8
v.

CERTIFICATE OF SERVICE

9
10

United States District Court
Northern District of California

11
12
13
14
15

CITY AND COUNTY OF SAN
FRANCISCO, et al.,
Defendants.
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 9/4/2014, 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.

16
17
18

Oscar Dwight Hollin, Jr.
642 South 52d Street
Richmond , CA 94804

19
20
21

Dated: 9/4/2014

22
23

Richard W. Wieking
Clerk, United States District Court

24
25
26
27

By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

28
4