Burnett v. Frayne et al

Filing 110

ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 5/21/13. (lrc, COURT STAFF) (Filed on 5/23/2013)

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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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8 OMARR L. BURNETT,

Plaintiff,

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Case No: C 09-4693 SBA
ORDER DISMISSING ACTION

vs.

11 DEPUTY FRAYNE, et al.,
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Defendants.

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This is a pro se civil rights action brought by Plaintiff Omarr Burnett, pursuant to 42

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U.S.C. § 1983. On May 3, 2013, the Court issued an Order to Show Cause Re Dismissal

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(“OSC”) based on his failure to appear for two Case Management Conferences scheduled

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for April 25, 2013 and May 2, 2013. Dkt. 108. The OSC directed Plaintiff to explain why

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the instant action should not be dismissed under Federal Rule of Civil Procedure 41(b) for

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failure to prosecute. The Court warned Plaintiff that the failure to respond to the OSC by

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May 17, 2013 would be deemed grounds to dismiss the action. To date, the Court has

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received no response to the OSC or other communication from Plaintiff.

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“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an

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action for failure to comply with any order of the court.” Ferdik v. Bonzelet 963 F.2d

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1258, 1260 (9th Cir. 1992); Link v. Wabash R. Co., 370 U.S. 626, 630 (1962) (“[t]he

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authority of the federal trial court to dismiss a plaintiff’s action with prejudice because of

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his failure to prosecute cannot seriously be doubted.”). “In determining whether to dismiss

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a claim for failure to prosecute or failure to comply with a court order, the Court must

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weigh the following factors: (1) the public’s interest in expeditious resolution

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

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defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public

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policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639,

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642 (9th Cir. 2002).

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In the instant case, the Court finds that the above-referenced factors weigh in favor

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of dismissal. With regard to the first factor, “[t]he public’s interest in expeditious

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resolution of litigation always favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983,

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990 (9th Cir. 1999). This is particularly true here, where Plaintiff has repeatedly failed to

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appear at the previously-scheduled Case Management Conferences, which, in turn, has

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interfered with the Court’s ability to enter a pretrial schedule and set a trial date.
The second factor, the Court’s need to manage its docket, also militates in favor of

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dismissal. See Pagtalunan, 291 F.3d at 642 (“It is incumbent upon the Court to manage its

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docket without being subject to routine noncompliance of litigants”); Yourish, 191 F.3d

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983, 990 (9th Cir. 1999) (recognizing court’s need to control its own docket); see also

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Ferdik, 963 F.2d at 1261 (non-compliance with a court’s order diverts “valuable time that

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[the court] could have devoted to other major and serious criminal and civil cases on its

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docket.”).

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The third factor, the risk of prejudice to the defendants, generally requires that “a

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defendant … establish that plaintiff’s actions impaired defendant’s ability to proceed to trial

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or threatened to interfere with the rightful decision of the case.” Pagtalunan, 291 F.3d at

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642. At the same time, the Ninth Circuit has “related the risk of prejudice to the plaintiff’s

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reason for defaulting.” Id. Here, Plaintiff has offered no explanation for his failure to

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respond nor is any apparent from the record. These facts also weigh strongly in favor of

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dismissal. See Yourish, 191 F.3d at 991; Ghazali, 46 F.3d. at 54.

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As to the fourth factor, the Court has already considered less drastic alternatives to

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dismissal. When Plaintiff failed to appear for the April 25, 2013 Case Management

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Conference, the Court did not dismiss the action; instead, the Court continued the matter to

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May 2, 2013. In addition, the Court directed Defendants to contact Plaintiff by telephone
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and mail to ensure that he was aware of the rescheduled date. Despite the Court and

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Defendants’ notice to Plaintiff of the new conference date, Plaintiff failed to appear.

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Finally, the Court gave Plaintiff another opportunity to proffer an excuse for his failures to

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appear by responding to the OSC. In the OSC, the Court warned Plaintiff that the failure to

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respond to the OSC would be deemed sufficient grounds for dismissing the action. “[A]

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

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dismissal can satisfy the ‘consideration of [less drastic sanctions]’ requirement.” Ferdik,

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963 F.2d at 1262.

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The final factor, which favors disposition of cases on the merits, by definition,

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weighs against dismissal. Pagtalunan, 291 F.3d at 643 (“Public policy favors disposition of

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cases on the merits. Thus, this factor weighs against dismissal.”).

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In sum, the Court concludes that four of the five relevant factors weigh strongly in

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favor of granting dismissing the action. Id. (affirming dismissal where three factors

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favored dismissal, while two factors weighed against dismissal). Accordingly,

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IT IS HEREBY ORDERED THAT the instant action is DISMISSED with prejudice
for failure to prosecute, pursuant to Rule 41(b).
IT IS SO ORDERED.
Dated: May 21, 2013

______________________________
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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OMARR L. BURNETT,

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Plaintiff,
v.
FRAYNE et al,

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Defendant.
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Case Number: CV09-04693 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.
That on May 23, 2013, 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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O’Marr L. Burnett
9949 Lawlor Street
Oakland, CA 94605
Dated: May 23, 2013
Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk

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Document1

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