White v. Greenwich Investors XXVI, LLC et al

Filing 15

ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 8/12/11. (lrc, COURT STAFF) (Filed on 8/12/2011)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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6 BABATUNDE M. WHITE,

Plaintiffs,

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Case No: C 08-2013 SBA
ORDER

vs.

9 GREENWICH INVESTORS XXVI, LLC,
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Defendant.

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On September 16, 2008, the Court issued an Order to Show Cause (“OSC”) why the

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instant action should not be dismissed without prejudice for failure to comply with the

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Court’s prior order and for failure to prosecute. Dkt. 14. A case management conference

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had been scheduled for September 11, 2008. However, the parties failed to file a joint case

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management statement, Plaintiff failed to initiate the case management conference call and

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neither party appeared for the conference. Based on these actions, the Court issued its OSC

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ordering the parties to appear on October 16, 2008 at 3:00 p.m. to show cause why the

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action should not be dismissed and ordering Plaintiff to file a Certificate of Plaintiff ten

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days prior to the hearing to explain why the case should not be dismissed. The parties were

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warned that the failure to comply with the OSC would result in dismissal of the action

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without prejudice. Plaintiff did not file the Certificate of Plaintiff and the parties did not

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appear at the hearing. To date, neither party has contacted the Court.

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A district court may sua sponte dismiss an action for failure to prosecute or to

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comply with a court order pursuant to Federal Rule of Civil Procedure 41(b). See Link v.

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Wabash R.R., 370 U.S. 626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir.

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1991). The court should consider five factors before dismissing an action under Rule

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41(b): (1) the public interest in the expeditious resolution of the litigation: (2) the court’s

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need to manage its docket; (3) the risk of prejudice to the defendants; (4) the availability of

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less drastic sanctions; and (5) the public policy favoring the disposition of actions on their

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merits. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995).

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The first three factors cited above weigh in favor of dismissal in light of the fact that

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Plaintiff has not pursued this matter for nearly three years in any fashion whatsoever. The

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fourth factor also weighs in favor of dismissal because less drastic sanctions would have

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little impact in light of the Court’s prior warning that the failure to comply with its OSC

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would result in the dismissal of the action. Although the fifth factor appears to weigh

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against dismissal, dismissal is appropriate in light of the other four factors. See Pagtalunan

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v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (finding district court did not abuse its

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discretion in dismissing petition with prejudice where three of the five factors weighed in

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favor of dismissal). In light of the foregoing,

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IT IS HEREBY ORDERED THAT this action is hereby DISMISSED WITHOUT

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PREJUDICE for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b).

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The Clerk of the Court shall close the file and terminate any pending matters.

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IT IS SO ORDERED.

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Dated: August 12, 2011

_____________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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WHITE et al,
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Plaintiff,
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v.
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GREENWICH INVESTORS XXVI, LLC et al,
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Defendant.
/

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Case Number: CV08-02013 SBA
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CERTIFICATE OF SERVICE
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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.

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That on August 12, 2011, 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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Babatunde White
1644 Cipriani Place
Brentwood, CA 94513

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Dated: August 12, 2011
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Richard W. Wieking, Clerk
By: LISA R CLARK, Deputy Clerk

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