Pimentel v. County of Sonoma et al

Filing 51

ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 9/9/11. (lrc, COURT STAFF) (Filed on 9/12/2011)

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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 DAVID W. PIMENTEL,

Plaintiff,

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Case No: C 08-2121 SBA
ORDER OF DISMISSAL

vs.

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9 COUNTY OF SONOMA, et al.,

Defendants.

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Plaintiff failed to appear for a telephonic Case Management Conference set for

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October 8, 2008. Dkt. 34. On October 14, 2008, the Court issued an Order to Show Cause

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(“OSC”) as to why the case should not be dismissed pursuant to Federal Rule of Civil

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Procedure 41(b) for failure to prosecute. Id. The Court set a hearing for November 12,

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2008, during which Plaintiff informed the Court that he was unable to appear as a result of

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an emergency involving his grandmother. Dkt. 36. The Court vacated its OSC. Id. On

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February 25, 2009, a telephonic Case Management Conference was schedule and Plaintiff

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again failed to appear. Dkt. 46. The case was continued to April 1, 2009 for an OSC as to

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why the case should not be dismissed for failure to prosecute. Id. Although the OSC

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hearing was not held, Plaintiff has made no contact with the Court or otherwise prosecuted

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this action since he filed his last case management statement on February 18, 2009. Dkt.

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44.

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Consequently, on August 17, 2011, the Court issued an OSC why the instant action

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should not be dismissed without prejudice for failure to prosecute under Federal Rule of

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Civil Procedure 41(b). Dkt. 50. In the OSC, the Court directed Plaintiff to submit a written

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memorandum within ten (10) days of the date the order to explain why the action should

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not be dismissed. The Court warned Plaintiff that the failure to comply with the order

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would result in dismissal without any further notice. To date, Plaintiff has not responded to

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the OSC.

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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 Rule 41(b). See Link v. Wabash R.R., 370 U.S. 626,

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633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). The court should

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consider five factors before dismissing an action under Rule 41(b): (1) the public interest in

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

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risk of prejudice to the defendants; (4) the availability of less drastic sanctions; and (5) the

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public policy favoring the disposition of actions on their merits. Ghazali v. Moran, 46 F.3d

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52, 53 (9th Cir. 1995).
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 two and a half years in any fashion whatsoever.

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

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

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OSC 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: September 9, 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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PIMENTEL et al,
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Plaintiff,
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v.
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COUNTY OF SONOMA et al,
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Defendant.
/

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Case Number: CV08-02121 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 September 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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David W. Pimentel
1192 Liberty Road
Petaluma, CA 94952

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Dated: September 12, 2011
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Richard W. Wieking, Clerk

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By: LISA R CLARK, Deputy Clerk

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