Turner v. Splunk Inc et al

Filing 27

DISMISSAL ORDER. Signed by Magistrate Judge Jacqueline Scott Corley on 3/30/2021. (ahm, COURT STAFF) (Filed on 3/30/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)Mailed order to plaintiff via USPS on 4/6/2021 and emailed order to Plaintiff ([e-mail]).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TERRANCE TURNER,

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Plaintiff,

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DISMISSAL ORDER

v.

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Re: Dkt. No. 26
SPLUNK INC.,

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Defendant.

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United States District Court
Northern District of California

Case No. 20-cv-04941-JSC

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Plaintiff Terrance Turner, proceeding without an attorney, filed this civil action alleging a

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multi-billion dollar fraud involving the government and Defendant Splunk Inc. Splunk moved

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to dismiss Mr. Tuner’s complaint for failure to state a claim and for lack of subject matter

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jurisdiction. (Dkt. No. 24.) After Mr. Turner failed to respond to the motion to dismiss, the Court

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issued an Order to Show Cause requiring him to do so and to show cause in writing as to why the

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action should not be dismissed for failure to prosecute.1 (Dkt. No. 26.) Mr. Turner failed to

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respond to the Court’s Order and has not otherwise communicated with the Court. The Court thus

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DISMISSES this action for failure to prosecute. See Fed. R. Civ. Pro. 41(b).
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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All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. §
636(c). (Dkt. Nos. 9, 18.)

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

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United States District Court
Northern District of California

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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 failing to respond to the motion to

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dismiss Mr. Turner has delayed adjudication of this action. Non-compliance with procedural rules

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

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criminal and 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 Mr. Turner’s failure to prosecute this action

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

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983, 991 (9th Cir. 1999).

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

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Mr. Turner that failure to respond would result in dismissal of this action. (Dkt. No. 26.) Thus,

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

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

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

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‘consideration of [less drastic sanctions] requirement.”). The fourth factor thus weighs in favor of

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dismissal.

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The last factor, which favors disposition on the merits, by definition weighs against

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dismissal. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (“Public policy favors
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disposition of cases on the merits. Thus, this factor weighs against dismissal.”).
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 is directed to close the action.

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IT IS SO ORDERED.

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Dated: March 30, 2021

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

United States District Court
Northern District of California

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