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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KAREN JIMENEZ,
Plaintiff,

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United States District Court
Northern District of California

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v.

Case No.17-cv-03322-JSC

ORDER DISMISSING CASE FOR
FAILURE TO PROSECUTE

LABOR BOARD OAKLAND, et al.,
Defendants.

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Plaintiff Karen Jimenez, representing herself, brings this civil action against several state

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and municipal entities related to issues she has encountered attempting to open an apprenticeship

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cosmetology program. The Court previously granted Plaintiff’s application to proceed in forma

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pauperis, screened her complaint under 28 U.S.C. § 1915, and dismissed her complaint for failure

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to state a claim with leave to amend. (Dkt. No. 7.) Plaintiff thereafter filed her First Amended

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Complaint (“FAC”). (Dkt. No. 8.) Upon review, the FAC still failed to state a claim upon which

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relief could be granted, and was dismissed with leave to amend. (Dkt. No. 10.) Plaintiff was also

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referred to the Legal Help Center for free legal advice regarding her claims and warned that failure

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to file her amended complaint by October 16, 2017 would result in the dismissal of her complaint

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for failure to prosecute. To date, Plaintiff has not filed her amended complaint or otherwise

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communicated with the Court.

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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)). “A Rule 41(b) dismissal must be supported by a

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showing of unreasonable delay.” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010)

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(internal citation and quotation marks omitted). In determining whether a Rule 41(b) dismissal is

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appropriate, the court must weigh the following factors: “(1) the public’s interest in expeditious

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

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defendants; (4) the public policy favoring disposition of cases on their merits and (5) the

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availability of less drastic sanctions.” Id. (quoting Henderson v. Duncan, 779 F.2d 1421, 1423

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(9th Cir.1986)). 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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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

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factors—the public interest in expeditious resolution of litigation and the Court’s need to manage

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United States District Court
Northern District of California

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its docket—relate to the “efficient administration of judicial business for the benefit of all litigants

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with cases pending.” Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1279

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(9th Cir. 1980). By failing to respond to the Court’s order and file her amended complaint,

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Plaintiff has delayed adjudication of this action. Non-compliance with procedural rules and the

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Court's orders wastes “valuable time that [the Court] could have devoted to other ... criminal and

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civil cases on its docket.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).

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As for the third factor, while “the pendency of the lawsuit is not sufficiently prejudicial

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itself to warrant dismissal,” the delay caused by Plaintiff’s failure to prosecute this action despite

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the Court’s order weighs in favor of dismissal. Yourish v. California Amplifier, 191 F.3d 983, 991

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(9th Cir. 1999). The fourth factor is the availability of less drastic sanctions. The Court already

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cautioned Plaintiff that failure to respond would result in dismissal of this action. (Dkt. No. 10.)

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Thus, the Court has fulfilled its “obligation to warn the plaintiff that dismissal is imminent.”

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Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992); see also Ferdick, 963 F.2d at 1262 (“A

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district court’s warning to a party that failure to obey the court’s order will result in dismissal can

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satisfy the ‘consideration of [less drastic sanctions] requirement.”). The last factor, which favors

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disposition on the merits, by definition, weighs against dismissal. Pagtalunan v. Galaza, 291 F.3d

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639, 643 (9th Cir. 2002) (“Public policy favors disposition of cases on the merits. Thus, this

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factor weighs against dismissal.”).
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In sum, four of the five relevant factors weigh strongly in favor of dismissing this action in

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its entirety. See Pagtalunan, 291 F.3d at 643 (affirming dismissal where three factors favored

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dismissal, while two factors weighed against dismissal). The Court therefore DISMISSES this

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action without prejudice.

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The Clerk shall close the case.

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IT IS SO ORDERED.

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Dated: October 31, 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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KAREN JIMENEZ,

Case No. 17-cv-03322-JSC

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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LABOR BOARD OAKLAND, et al.,
Defendants.

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 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.

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Karen Jimenez
161 Ben Lomand
Hercules, CA 94547

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Dated: October 31, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Ada Means, Deputy Clerk to the
Honorable JACQUELINE SCOTT CORLEY
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