Dimenco et al v. Service Employees International Union et al

Filing 54

ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 5/10/11. (lrc, COURT STAFF) (Filed on 5/13/2011)

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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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9 ROSEANNE DIMENCO, TYRONE

DICKENS, RICHARD MARLOWE, JUAN
10 ANTONIO MOLINA, NICHOLAS
PALAFOX, TONI RANGEL, STARLA
11 ROLLINS, MYKELE SAUNDERS, and
MARTHA VAZQUEZ,

Case No: C 10-03112 SBA
ORDER DISMISSING ACTION
Dkt. 52

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Plaintiffs,
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vs.
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SERVICE EMPLOYEES INTERNATIONAL
15 UNION, DAVID REGAN, and ELISEO

MEDINA,
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Defendants.
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On April 29, 2011, the Court issued an Order to Show Cause (OSC) directing

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Plaintiffs to show cause why the instant action should not be dismissed under Federal Rule

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of Civil Procedure 41(b). The OSC was based, inter alia, on Plaintiffs’ failure to comply

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with the Court’s January 10, 2011, disqualifying their counsel and directing Plaintiffs to

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retain new counsel within thirty days. Dkt. 50. In addition, Plaintiffs failed to file a Case

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Management Conference Statement in anticipation of the Case Management Conference

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scheduled for April 28, 2011. Id. Plaintiffs had until May 6, 2011, to respond to the OSC,

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and were explicitly warned that the “FAILURE TO FULLY COMPLY WITH THIS

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ORDER WILL BE DEEMED SUFFICIENT GROUNDS TO DISMISS THE ACTION,

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WITHOUT FURTHER NOTICE.” Dkt. 52 at 2. Plaintiffs have failed to respond to the

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OSC.

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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). “In determining whether to dismiss a claim for failure to

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prosecute or failure to comply with a court order, the Court must weigh the following

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factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need

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

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of less drastic alternatives; and (5) the public policy favoring disposition of cases on their

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merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).
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 in the instant case, where Plaintiffs have failed

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to prosecute this action by failing to comply with the Court’s orders to retain new counsel

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and to prepare and file a Case Management Statement.

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The second factor also militates in favor of dismissal. See Pagtalunan, 291 F.3d at

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642 (“It is incumbent upon the Court to manage its docket without being subject to routine

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noncompliance of litigants”); Yourish, 191 F.3d 983, 990 (9th Cir. 1999) (recognizing

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court’s need to control its own docket); see also Ferdik, 963 F.2d at 1261 (non-compliance

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with a court’s order diverts “valuable time that [the court] could have devoted to other

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major and serious criminal and civil cases on its 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, Plaintiffs have offered no explanation for their 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. The Court explicitly warned Plaintiffs that the failure to respond to the OSC

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would result in the dismissal of the action. “[A] district court’s warning to a party that

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failure to obey the court’s order will result in dismissal can satisfy the ‘consideration of

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[less drastic sanctions]’ requirement.” Ferdik, 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 dismissing the action in its entirety. 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.
The Clerk shall close the file and terminate all pending matters and deadlines.
IT IS SO ORDERED.
Dated: May 10, 2011

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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