Schatek v. Tsui

Filing 20

ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 10/7/11. (lrc, COURT STAFF) (Filed on 10/12/2011)

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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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5 KEITH SHATEK,

Plaintiff,

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Case No: C 10-5896 SBA
ORDER OF DISMISSAL

vs.

8 KING TSUI,
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Defendant.

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On July 12, 2011, the Court issued an Order to Show Cause why the instant action

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should not be dismissed under Federal Rule of Civil Procedure 41(b) for failing to comply

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with the Court’s scheduling order. Dkt. 19. Plaintiff has not responded to the Order to

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Show Cause and the time for doing so has long since passed.

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A court must weigh five factors in determining whether to dismiss a case for failure

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to prosecute, failure to comply with a court order, or failure to comply with a district

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court’s local rules. Ferdik v. Bonzelet 963 F.2d 1258, 1260 (9th Cir. 1992). Specifically,

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

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the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the

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availability of less drastic alternatives; and (5) the public policy favoring disposition of

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cases on their merits. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). “These

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factors are not a series of conditions precedent before the judge can do anything, but a way

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for a district judge to think about what to do.” In re Phenylpropanolamine (PPA) Prods.

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Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006).

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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 in the instant case, where Plaintiff’s failure to

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file a case management statement and failure to set up the call for and appear at the case

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management conference has impeded this Court’s ability to schedule this case for trial and

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move the litigation forward.

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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, 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 by warning Plaintiff that the failure to respond to the Order to Show Cause would

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

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obey the court’s order will result in dismissal can satisfy the ‘consideration of [less drastic

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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 dismissal. Id. (affirming dismissal with prejudice where three factors favored

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

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IT IS HEREBY ORDERED THAT the instant action is DISMISSED with prejudice,

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pursuant to Federal Rule of Civil Procedure 41(b). The Clerk shall close the file and

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terminate all pending matters and deadlines.

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IT IS SO ORDERED.
Dated: October 7, 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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SCHATEK et al,
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Plaintiff,
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v.
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TSUI et al,
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Defendant.
/

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Case Number: CV10-05896 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 October 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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Keith Schatek
# 7 N. Front Street
Rio Vista, CA 94571

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King Tsui
473 Buena Vista Avenue, Suite #203
Alameda, CA 94501

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

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By: LISA R CLARK, Deputy Clerk

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