Cooke et al v. Liles et al

Filing 44

ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 7/12/13. (lrc, COURT STAFF) (Filed on 7/12/2013)

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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 ALAN COOKE, GAGE T. COOKE,

Plaintiffs,

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Case No: C 12-1844 SBA
ORDER DISMISSING ACTION

vs.

12 TERRY LILES, an individual, MURL

HARPMAN, an individual, MARVIN
13 KIRKPATRICK, an individual, MICHAEL

MEDLIN, an individual, CITY OF EUREKA
14 POLICE DEPARTMENT; COUNTY OF

HUMBOLDT; PAUL GALLEGOS, an
15 individual; HUMBOLDT COUNTY

SHERIFF’S OFFICE; various DOE
16 defendants, inclusive,
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Defendants.

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The instant pro se action arises from the death of Zachary Cooke (“Decedent”), who

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was shot and killed on January 4, 2007 by Eureka Police Department Officer Terry Liles.

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On March 25, 2013, the Court, pursuant to 28 U.S.C. § 1915(e)(2), prescreened the

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Complaint filed by the Decedent’s father, Alan Cooke, and the Decedent’s brother, Gage T.

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Cooke. The Court dismissed the claims alleged in the Complaint with leave to amend, and

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denied Plaintiffs’ motion for recusal. Dkt. 30. The Court instructed Plaintiffs to file their

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Amended Complaint by no later than April 24, 2013, and expressly warned that the

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“[f]ailure to file an amended complaint within the specified time-frame will result in the

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dismissal of the action, without prejudice, pursuant to Federal Rule of Civil Procedure

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41(b).” Id. at 14.

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Plaintiffs did not file an Amended Complaint, as instructed. Instead, on April 15,

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2013, Plaintiff Alan Cooke individually filed a Notice of Appeal from the Court’s Order

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dismissing the Complaint. Dkt. 31. The Ninth Circuit subsequently dismissed the appeal

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for lack of jurisdiction.

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On April 26, 2013, the Court issued an Order in which it noted that the deadline for

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Plaintiffs to file their Amended Complaint had lapsed and that the Court was within its

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discretion to dismiss the action. However, in consideration of less drastic alternatives to

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dismissal, the Court sua sponte granted Plaintiffs additional time to file their Amended

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Complaint, as follows:

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Plaintiffs shall have until May 10, 2013 to file their Amended
Complaint. Plaintiffs are warned that the failure to file an
Amended Complaint within the specified time-frame will result
in the dismissal of the action with prejudice, without further
notice, pursuant to Federal Rule of Civil Procedure 41(b).

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Id. at 3-4 (emphasis added). To date, Plaintiffs have not filed an Amended Complaint or

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otherwise communicated with the Court.

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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); Link v. Wabash R. Co., 370 U.S. 626, 630 (1962) (“[t]he

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authority of the federal trial court to dismiss a plaintiff’s action with prejudice because of

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his failure to prosecute cannot seriously be doubted.”). “In determining whether to dismiss

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a claim for failure to prosecute or failure to comply with a court order, the Court must

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weigh the following factors: (1) the public’s interest in expeditious resolution

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of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to

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defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public

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policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639,

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642 (9th Cir. 2002).

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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 here, where Plaintiffs have repeatedly failed to

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comply with the Court’s deadlines to file an Amended Complaint, which, in turn, has

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interfered with the Court’s ability to enter a pretrial schedule and set a trial date.

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The second factor, the Court’s need to manage its docket, also militates in favor of

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dismissal. See Pagtalunan, 291 F.3d at 642 (“It is incumbent upon the Court to manage its

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docket without being subject to routine noncompliance of litigants”); Yourish, 191 F.3d

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983, 990 (9th Cir. 1999) (recognizing court’s need to control its own docket); see also

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Ferdik, 963 F.2d at 1261 (non-compliance with a court’s order diverts “valuable time that

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[the court] could have devoted to other major and serious criminal and civil cases on its

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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 v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).

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(per curiam).

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As to the fourth factor, the Court has already considered less drastic alternatives to

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dismissal. In its March 25 Order dismissing Plaintiffs’ claims, the Court warned Plaintiffs

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that the failure to timely amend would be deemed grounds for dismissal under Rule 41(b).

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When Plaintiffs failed to timely amend, rather than dismissing the action, the Court sua

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sponte granted Plaintiffs an extension of time to amend—and again warned that the failure

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to do so would result in the dismissal of the action, with prejudice. “[A] district court’s

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warning to a party that failure to obey the court’s order will result in dismissal can satisfy

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the ‘consideration of [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 granting dismissing the action. 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
for failure to prosecute, pursuant to Rule 41(b).
IT IS SO ORDERED.
Dated: July 12, 2013

______________________________
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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ALAN A. COOKE et al,
Plaintiff,

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v.
TERRY LILES et al,
Defendant.
/

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Case Number: CV12-01844 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 July 12, 2013, 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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Alan A. Cooke
1513 Antone
Arcata, CA 95521
Gage T. Cooke
1114 Curtis St.
Burlington, WA 98233
Dated: July 12, 2013
Richard W. Wieking, Clerk

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By: Lisa Clark, Deputy Clerk
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