Rowe v. Mo et al

Filing 10

ORDER OF DISMISSAL. Signed by Judge Jacqueline Scott Corley on 9/24/2024. (ahm, COURT STAFF) (Filed on 9/24/2024)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)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RICHARD DAVID ROWE,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 3:24-cv-03113-JSC
DISMISSAL ORDER

v.

Re: Dkt. No. 9

MO, et al.,
Defendants.

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Plaintiff, who is representing himself, brought this action against Bank of America and a

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Mr. Mo. On May 30, 2024, Magistrate Judge Kim granted Plaintiff’s in forma pauperis application

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and screened his complaint under 28 U.S.C. § 1915 because the nature of his claims and the basis

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for federal subject matter jurisdiction was unclear. (Dkt. No. 4.) Plaintiff was given until June 20,

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2024 to file an amended complaint. He did not do so and the action was reassigned to the

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undersigned district judge. (Dkt. No. 7.) On August 22, 2024, the Court ordered Plaintiff to show

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cause as to why the action should not be dismissed for failure to prosecute. (Dkt. No. 9.) Plaintiff

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was given until September 19, 2024 to respond to the Court’s Order and warned that failure to do

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so could result in the dismissal of the action for failure to prosecute. Plaintiff has not responded to

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the Court’s Order and the time to do so has run.

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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) overruled on other grounds by Langere v. Verizon

United States District Court
Northern District of California

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Wireless Servs., LLC, 983 F.3d 1115, 1117 (9th Cir. 2020). In determining whether a Rule 41(b)

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dismissal is appropriate, 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 the defendants; (4) the public policy favoring disposition of cases on their merits and

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(5) the availability of less drastic sanctions.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th

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Cir. 1986)). Dismissal is appropriate “where at least four factors support dismissal . . . or where at

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least three factors strongly support dismissal.” Hernandez v. City of El Monte, 138 F.3d 393, 399

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(9th Cir. 1998) (internal citation and quotation marks omitted).

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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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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 Orders Plaintiff has delayed adjudication

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of this action. Non-compliance with the Court’s orders wastes “valuable time that [the Court]

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could have devoted to other ... criminal and civil cases on its docket.” Ferdik v. Bonzelet, 963 F.2d

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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 orders weighs in favor of dismissal. Yourish v. California Amplifier, 191 F.3d 983, 991

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(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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Plaintiff failure to respond would result in dismissal of this action. (Dkt. No. 9.) Thus, the Court

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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.”).

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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 is directed to close the action.

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IT IS SO ORDERED.
Dated: September 24, 2024

United States District Court
Northern District of California

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JACQUELINE
ACQ
C UE
UELINE SCOTT CORLEY
Y
United
U
it d States
St t District
Dii t i t JJudge
d

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