Jimenez v. Labor Board Oakland et al

Filing 11

ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE. Signed by Magistrate Judge Jacqueline Scott Corley on 10/31/2017. (ahm, COURT STAFF) (Filed on 10/31/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KAREN JIMENEZ, Plaintiff, 8 9 10 United States District Court Northern District of California 11 v. Case No.17-cv-03322-JSC ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE LABOR BOARD OAKLAND, et al., Defendants. 12 13 Plaintiff Karen Jimenez, representing herself, brings this civil action against several state 14 and municipal entities related to issues she has encountered attempting to open an apprenticeship 15 cosmetology program. The Court previously granted Plaintiff’s application to proceed in forma 16 pauperis, screened her complaint under 28 U.S.C. § 1915, and dismissed her complaint for failure 17 to state a claim with leave to amend. (Dkt. No. 7.) Plaintiff thereafter filed her First Amended 18 Complaint (“FAC”). (Dkt. No. 8.) Upon review, the FAC still failed to state a claim upon which 19 relief could be granted, and was dismissed with leave to amend. (Dkt. No. 10.) Plaintiff was also 20 referred to the Legal Help Center for free legal advice regarding her claims and warned that failure 21 to file her amended complaint by October 16, 2017 would result in the dismissal of her complaint 22 for failure to prosecute. To date, Plaintiff has not filed her amended complaint or otherwise 23 communicated with the Court. 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)). “A Rule 41(b) dismissal must be supported by a 28 showing of unreasonable delay.” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) 1 (internal citation and quotation marks omitted). In determining whether a Rule 41(b) dismissal is 2 appropriate, the court must weigh the following factors: “(1) the public’s interest in expeditious 3 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 4 defendants; (4) the public policy favoring disposition of cases on their merits and (5) the 5 availability of less drastic sanctions.” Id. (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 6 (9th Cir.1986)). Dismissal is appropriate “where at least four factors support dismissal . . . or 7 where at least three factors strongly support dismissal.” Hernandez v. City of El Monte, 138 F.3d 8 393, 399 (9th Cir. 1998) (internal citation and quotation marks omitted). Here, four of the five Henderson factors weigh in favor of dismissal. “The first two 10 factors—the public interest in expeditious resolution of litigation and the Court’s need to manage 11 United States District Court Northern District of California 9 its docket—relate to the “efficient administration of judicial business for the benefit of all litigants 12 with cases pending.” Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1279 13 (9th Cir. 1980). By failing to respond to the Court’s order and file her amended complaint, 14 Plaintiff has delayed adjudication of this action. Non-compliance with procedural rules and the 15 Court's orders wastes “valuable time that [the Court] could have devoted to other ... criminal and 16 civil cases on its docket.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). 17 As for the third factor, while “the pendency of the lawsuit is not sufficiently prejudicial 18 itself to warrant dismissal,” the delay caused by Plaintiff’s failure to prosecute this action despite 19 the Court’s order weighs in favor of dismissal. Yourish v. California Amplifier, 191 F.3d 983, 991 20 (9th Cir. 1999). The fourth factor is the availability of less drastic sanctions. The Court already 21 cautioned Plaintiff that failure to respond would result in dismissal of this action. (Dkt. No. 10.) 22 Thus, the Court has fulfilled its “obligation to warn the plaintiff that dismissal is imminent.” 23 Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992); see also Ferdick, 963 F.2d at 1262 (“A 24 district court’s warning to a party that failure to obey the court’s order will result in dismissal can 25 satisfy the ‘consideration of [less drastic sanctions] requirement.”). The last factor, which favors 26 disposition on the merits, by definition, weighs against dismissal. Pagtalunan v. Galaza, 291 F.3d 27 639, 643 (9th Cir. 2002) (“Public policy favors disposition of cases on the merits. Thus, this 28 factor weighs against dismissal.”). 2 1 In sum, four of the five relevant factors weigh strongly in favor of dismissing this action in 2 its entirety. See Pagtalunan, 291 F.3d at 643 (affirming dismissal where three factors favored 3 dismissal, while two factors weighed against dismissal). The Court therefore DISMISSES this 4 action without prejudice. 5 The Clerk shall close the case. 6 IT IS SO ORDERED. 7 Dated: October 31, 2017 8 JACQUELINE SCOTT CORLEY United States Magistrate Judge 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 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KAREN JIMENEZ, Case No. 17-cv-03322-JSC Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 10 LABOR BOARD OAKLAND, et al., Defendants. United States District Court Northern District of California 11 12 13 14 15 16 17 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 October 31, 2017, 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. 18 19 20 Karen Jimenez 161 Ben Lomand Hercules, CA 94547 21 22 Dated: October 31, 2017 23 24 25 Susan Y. Soong Clerk, United States District Court 26 27 28 By:________________________ Ada Means, Deputy Clerk to the Honorable JACQUELINE SCOTT CORLEY 4

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