Cabusas et al v. Kay-Co Investment, Inc. et al

Filing 22

ORDER DISMISSING CASE. Signed by Judge Hamilton on 1/29/2013. (pjhlc1, COURT STAFF) (Filed on 1/29/2013)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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NORMA CABUSAS, et al.,

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For the Northern District of California

United States District Court

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Plaintiffs,

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v.

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ORDER DISMISSING CASE

KAY-CO INVESTMENT, INC., et al.,

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No. C 12-1133 PJH

Defendants.
_______________________________/

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Plaintiffs having filed the above-entitled action on March 7, 2012, and having failed

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to comply with the court’s order to serve the defendants and file a proof of service with the

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court by December 31, 2012, the case is hereby DISMISSED pursuant to Federal Rule of

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Civil Procedure 41(b) for failure to prosecute and failure to comply with an order of the

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court.

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The court finds that dismissal is warranted based on the factors articulated by the

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Ninth Circuit. See, e.g., Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Carey v.

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King, 856 F.2d 1439, 1440 (9th Cir.1988). Dismissal is appropriate based on the public's

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interest in expeditious resolution of litigation and the court’s need to balance its docket.

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Further, plaintiffs having failed to serve defendants, despite the court’s extension of time for

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service well beyond the 120 days allowed under Federal Rule of Civil Procedure 4(m), cuts

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against any possible prejudice plaintiffs might suffer because of a dismissal. The court

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previously offered a less drastic alternative – an extension of time for service – but plaintiffs

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failed to comply. Accordingly, the court finds that no less drastic alternative to dismissal is

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now available. In view of the above findings, the public policy favoring disposition of cases

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on their merits is insufficient to preclude dismissal in this case.

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IT IS SO ORDERED.

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Dated: January 29, 2013
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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