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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CLARENCE STOKES,
Plaintiff,

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BROADMOOR POLICE DEPARTMENT,
et al.,

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United States District Court
Northern District of California

ORDER OF DISMISSAL

v.

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Case No.16-cv-04106-JSC

Defendants.

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Plaintiff Clarence Stokes brings this civil rights action against the Broadmoor Police

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Department and Police Commission and two individual police officers arising out of Plaintiff’s

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arrest at a family gathering. (Dkt. No. 1.) Plaintiff initiated this action on July 21, 2016. (Id.) On

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October 27, 2016, at a Case Management Conference, the Court ordered Plaintiff to serve

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Defendants within 30 days, ordered the parties to file a joint case management statement by

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January 19, 2017, and set a further CMC for January 26, 2017. (Dkt. No. 9.) The Court held the

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January 26 further CMC, and Plaintiff did not appear. (See Dkt. No. 12.) In addition, Plaintiff

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neither filed a case management statement in advance of the scheduled CMC nor filed proof of

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service on the docket. Thus, as of the date of this Order—over six months since he filed the

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complaint—Plaintiff has still not served Defendants, and he has failed to comply with the Court’s

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orders.

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Pursuant to Federal Rule of Civil Procedure 41(b), the court may dismiss an action for

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failure to prosecute or to comply with a court order. See Hells Canyon Preservation Council v.

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U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that a court may sua sponte

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dismiss an action pursuant to Rule 41(b)); see also Castellanos v. Countrywide Bank NA, No. 15-

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cv-00896-BLF, 2015 WL 5243327, at *2 (N.D. Cal. Sept. 8, 2015) (noting that a plaintiff’s failure

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to serve defendants is considered a failure to prosecute). A Rule 41(b) dismissal “must be

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supported by a showing of unreasonable delay.” Olmstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th

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Cir. 2010) (citation omitted). “In determining whether to dismiss a claim for . . . failure to comply

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with a court order, the Court must weigh the following factors: (1) the public’s interest in

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expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

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prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the

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public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639,

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642 (9th Cir. 2002). Dismissal is appropriate “where at least four factors support dismissal . . . or

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where at least three factors strongly support dismissal.” Hernandez v. City of El Monte, 138 F.3d

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United States District Court
Northern District of California

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393, 399 (9th Cir. 1998) (internal quotation marks and citation omitted).
Plaintiff’s unjustified failure to serve Defendants constitutes unreasonable delay. See

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Castellanos, 2015 WL 5243327, at *2. Moreover, four of the five Pagtalunan factors weigh in

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favor of dismissal. In connection with the first and second factor, by failing to serve Defendants,

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Plaintiff has completely stalled this action and interfered with the Court’s need to manage its

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docket. As to the third factor, the Ninth Circuit has “related the risk of prejudice to the plaintiff’s

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reason for defaulting.” Pagtalunan, 291 F.3d at 642. Here, Plaintiff has offered no explanation

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for his failure to serve Defendants or appear as ordered. Thus, this factor weighs in favor of

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dismissal. The fourth factor is the availability of less drastic sanctions. The Court has already

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given Plaintiff a generous extension of time to serve Defendants, see Fed. R. Civ. P. 4(m), and

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only now after Plaintiff has still failed to serve Defendants and to appear at the CMC or otherwise

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explain his delay is the Court turning to dismissal. The last factor, which favors disposition on the

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merits, by definition weighs against dismissal. Pagtalunan, 291 F.3d at 643 (“Public policy favors

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disposition of cases on the merits. Thus, this factor weighs against dismissal.”). Four of the five

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relevant factors weigh in favor of dismissing this action in its entirety, so dismissal is appropriate.

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Pagtalunan, 291 F.3d at 43 (affirming dismissal where three factors favored dismissal, while two

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factors weighed against dismissal).

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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
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prejudice.
IT IS SO ORDERED.
Dated: January 27, 2017

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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United States District Court
Northern District of California

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