Waugh et al v. Harrington et al

Filing 26

ORDER of dismissal. Signed by Judge Hamilton on 07/30/2012. (pjhlc2, COURT STAFF) (Filed on 7/30/2012) (Additional attachment(s) added on 7/30/2012: # 1 Certificate/Proof of Service) (nah, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JEFF WAUGH, et al.,

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v.

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For the Northern District of California

United States District Court

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Plaintiff(s),

ORDER OF DISMISSAL

SCOTT HARRINGTON, et al.,

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No. C 11-5602 PJH

Defendant(s).
_______________________________/

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This matter was before the court for hearing on defendant Denner’s motion to

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dismiss the first amended complaint on May 30, 2012. Plaintiff Jeff Waugh did not oppose

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the motion but did appear at the hearing. Plaintiffs Lyra Waugh and Erica Stahl did not

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oppose the motion or appear at the hearing. The motion was granted as explained at the

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hearing and summarized in an order filed on June 5, 2012. The four causes of action

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asserted against Denner were dismissed, two of them with leave to amend and two of them

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with prejudice, and the court sua sponte dismissed all claims against the non-moving

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defendants because it was impossible to tell which claim was asserted against which

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defendant(s), and ordered that plaintiffs provide a more definite statement of their claims

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against each defendant by filing an amended complaint. Specific instructions on how to

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amend were provided in the June 5, 2012 order and a deadline of June 27, 2012 was set.

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The deadline passed and plaintiffs did not filed the second amended complaint as ordered.

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The court thereafter issued an Order to Show Cause (“OSC”) why the complaint

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should not be dismissed with prejudice for failing to comply with the court’s order and

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otherwise prosecute this matter. The OSC also warned that all plaintiffs were required to

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appear (because pro se plaintiff Jeff Waugh could not represent the other two plaintiffs)

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and that the case would be dismissed with prejudice if they failed to appear. A hearing on

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the OSC was held on July 25, 2012 at 9:00 a.m. Defendant Denner appeared at the

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hearing, but no plaintiff appeared. As of today’s date, no written response to the OSC or

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request for relief therefrom has been received from any plaintiff.

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Accordingly, the court having considered the five factors set forth in Malone v.

that notwithstanding the public policy favoring the disposition of actions on their merits, the

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court's need to manage its docket and the public interest in the expeditious resolution of the

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litigation require dismissal of this action. In view of plaintiffs’ lack of response to this court's

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For the Northern District of California

United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987), and having determined

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United States District Court

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prior orders, the court finds there is no appropriate less drastic sanction.

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Accordingly, this action is dismissed with prejudice pursuant to Fed. R. Civ. pro. 41(b) for

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plaintiffs’ failure to prosecute.

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IT IS SO ORDERED
Dated: July 30, 2012

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_________________________________
PHYLLIS J. HAMILTON
United States District Judge

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