Stokes v. Broadmoor Police Department et al

Filing 13

ORDER of Dismissal. Signed by Magistrate Judge Jacqueline Scott Corley on 1/27/2017. (ahm, COURT STAFF) (Filed on 1/27/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CLARENCE STOKES, Plaintiff, 8 BROADMOOR POLICE DEPARTMENT, et al., 11 United States District Court Northern District of California ORDER OF DISMISSAL v. 9 10 Case No.16-cv-04106-JSC Defendants. 12 Plaintiff Clarence Stokes brings this civil rights action against the Broadmoor Police 13 14 Department and Police Commission and two individual police officers arising out of Plaintiff’s 15 arrest at a family gathering. (Dkt. No. 1.) Plaintiff initiated this action on July 21, 2016. (Id.) On 16 October 27, 2016, at a Case Management Conference, the Court ordered Plaintiff to serve 17 Defendants within 30 days, ordered the parties to file a joint case management statement by 18 January 19, 2017, and set a further CMC for January 26, 2017. (Dkt. No. 9.) The Court held the 19 January 26 further CMC, and Plaintiff did not appear. (See Dkt. No. 12.) In addition, Plaintiff 20 neither filed a case management statement in advance of the scheduled CMC nor filed proof of 21 service on the docket. Thus, as of the date of this Order—over six months since he filed the 22 complaint—Plaintiff has still not served Defendants, and he has failed to comply with the Court’s 23 orders. 24 Pursuant to Federal Rule of Civil Procedure 41(b), the court may dismiss an action for 25 failure to prosecute or to comply with a court order. See Hells Canyon Preservation Council v. 26 U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that a court may sua sponte 27 dismiss an action pursuant to Rule 41(b)); see also Castellanos v. Countrywide Bank NA, No. 15- 28 cv-00896-BLF, 2015 WL 5243327, at *2 (N.D. Cal. Sept. 8, 2015) (noting that a plaintiff’s failure 1 to serve defendants is considered a failure to prosecute). A Rule 41(b) dismissal “must be 2 supported by a showing of unreasonable delay.” Olmstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th 3 Cir. 2010) (citation omitted). “In determining whether to dismiss a claim for . . . failure to comply 4 with a court order, the Court must weigh the following factors: (1) the public’s interest in 5 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 6 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 7 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 8 642 (9th Cir. 2002). Dismissal is appropriate “where at least four factors support dismissal . . . or 9 where at least three factors strongly support dismissal.” Hernandez v. City of El Monte, 138 F.3d 10 United States District Court Northern District of California 11 393, 399 (9th Cir. 1998) (internal quotation marks and citation omitted). Plaintiff’s unjustified failure to serve Defendants constitutes unreasonable delay. See 12 Castellanos, 2015 WL 5243327, at *2. Moreover, four of the five Pagtalunan factors weigh in 13 favor of dismissal. In connection with the first and second factor, by failing to serve Defendants, 14 Plaintiff has completely stalled this action and interfered with the Court’s need to manage its 15 docket. As to the third factor, the Ninth Circuit has “related the risk of prejudice to the plaintiff’s 16 reason for defaulting.” Pagtalunan, 291 F.3d at 642. Here, Plaintiff has offered no explanation 17 for his failure to serve Defendants or appear as ordered. Thus, this factor weighs in favor of 18 dismissal. The fourth factor is the availability of less drastic sanctions. The Court has already 19 given Plaintiff a generous extension of time to serve Defendants, see Fed. R. Civ. P. 4(m), and 20 only now after Plaintiff has still failed to serve Defendants and to appear at the CMC or otherwise 21 explain his delay is the Court turning to dismissal. The last factor, which favors disposition on the 22 merits, by definition weighs against dismissal. Pagtalunan, 291 F.3d at 643 (“Public policy favors 23 disposition of cases on the merits. Thus, this factor weighs against dismissal.”). Four of the five 24 relevant factors weigh in favor of dismissing this action in its entirety, so dismissal is appropriate. 25 Pagtalunan, 291 F.3d at 43 (affirming dismissal where three factors favored dismissal, while two 26 factors weighed against dismissal). 27 28 Plaintiff has consented, pursuant to 28 U.S.C. § 636(c), to magistrate judge jurisdiction in this matter. (Dkt. No. 8.) Accordingly, the Court DISMISSES Plaintiffs’ complaint without 2 1 2 3 prejudice. IT IS SO ORDERED. Dated: January 27, 2017 4 5 JACQUELINE SCOTT CORLEY United States Magistrate Judge 6 7 8 9 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

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