Smith v. Adaptec

Filing 14

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
Case No: C 11-1481 SBA

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CHARMANE SMITH,
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Plaintiff,
ORDER OF DISMISSAL

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vs.
Dkt. 2, 3

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ADAPTEC,
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Defendant.
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On March 25, 2011, Plaintiff filed the instant action against Defendant. Dkt. 1.

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Also on March 25, 2011, Plaintiff filed an application to proceed in forma pauperis (“IFP”)

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and a motion for appointment of counsel. Dkt. 2, 3. In connection with Plaintiff’s IFP

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application, the Court examined Plaintiff’s complaint to determine whether it had subject

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matter jurisdiction over her lawsuit. Docket 12. The Court determined that it did not have

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federal question jurisdiction under 28 U.S.C. § 1331. Id. Because it was unclear as to

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whether diversity jurisdiction under 28 U.S.C. § 1332 existed, the Court issued an Order to

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Show Cause directing Plaintiff to inform the Court of her State of domicile so that it could

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determine the State of her citizenship, thereby assessing whether diversity jurisdiction was

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present. Id. The Court warned Plaintiff that her failure to respond within fourteen (14)

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days of the date the Order to Show Cause was filed would result in the dismissal of her

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action without further notice. Id. To date, Plaintiff has failed to respond to the Court’s

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Order to Show Cause. Pursuant to its Order to Show Cause, the Court dismisses without

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prejudice the instant action on the ground that it lacks federal question jurisdiction and

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diversity jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577, 583

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(1999) (stating that a federal court must satisfy itself of its jurisdiction over the subject

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matter before proceeding to the merits of the case).

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Moreover, pursuant to Federal Rule of Civil Procedure 41(b), the Court additionally

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dismisses without prejudice the instant action for Plaintiff’s failure to comply with its Order

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

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to comply with a court order under 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 responded to the Court’s Order to Show Cause. The fourth factor also

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weighs in favor of dismissal because less drastic sanctions would have little impact in light

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of the Court’s prior warning that the failure to comply with its Order to Show Cause would

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

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

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

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

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dismissal). Accordingly,

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IT IS HEREBY ORDERED THAT this action is hereby DISMISSED WITHOUT

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PREJUDICE for lack of subject matter jurisdiction under 28 U.S.C. §§ 1331, 1332, and for

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failure to prosecute under Federal Rule of Civil Procedure 41(b). The Clerk of the Court

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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

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SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
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FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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SMITH et al,

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Plaintiff,
v.
ADAPTEC et al,
Defendant.
/

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Case Number: CV11-01481 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 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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Charmane Smith
1509 Mink Street
Memphis, TN 38111

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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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