Alawi v. AMCO Insurance Company

Filing 20

***DISREGARD, SEE DOCKET NO. 23 .*** DISMISSAL ORDER. Signed by Judge Saundra Brown Armstrong on 10/9/2013. (ndr, COURT STAFF) (Filed on 10/9/2013) Modified on 10/9/2013 (ndr, COURT STAFF).

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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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ALI ALAWI,

Case No: C 13-3353 SBA

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Plaintiff,

DISMISSAL ORDER

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vs.
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AMCO INSURANCE COMPANY, a
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inclusive,
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Defendants.
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On October 9, 2012, Plaintiff Ali Alawi ("Plaintiff") commenced the instant action

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against Defendant AMCO Insurance Company ("Defendant") in the Superior Court of

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California, County of Alameda, alleging a claim for breach of contract. Compl., Dkt. 1.

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On July 18, 2013, the action was removed to this Court based on diversity jurisdiction.

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Notice of Removal, Dkt. 1. On July 25, 2013, Defendant filed a motion to dismiss and a

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motion to strike. Dkt. 9. On July 29, 2013, the action was reassigned to the undersigned.

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Dkt. 12. On July 30, 2013, Defendant renoticed its motion to dismiss and motion to strike

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for hearing on October 1, 2013. Dkt. 15.

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Under Civil Local Rule 7-3, any opposition or statement of non-opposition to a

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motion is due no later than two weeks after the filing of the motion. This Court's Standing

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Orders specifically warn that the "failure of the opposing party to file a memorandum of

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points and authorities in opposition to any motion shall constitute a consent to the granting

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of the motion." Civil Standing Orders at 5, Dkt. 13. Following Plaintiff's failure to file a

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timely response to Defendant's motion to dismiss and motion to strike, the Court issued an

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Order directing Plaintiff to file a response to the motions by no later than October 7, 2013.

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To date, Plaintiff has filed nothing in response to the motions.

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An action may be dismissed under Rule 41(b) for failure to prosecute or to comply

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with a Court order. See Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d

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683, 689 (9th Cir. 2005) (recognizing that a district court may dismiss an action pursuant to

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Rule 41(b) sua sponte for a plaintiff's failure to prosecute or comply with a court order);

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) ("the district court may dismiss an

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action for failure to comply with any order of the court"). "In determining whether to

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

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must weigh the following factors: (1) the public's interest in expeditious resolution of

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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 resolution

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of litigation always favors dismissal." Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th

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Cir. 1999). This is particularly true in the instant case where Plaintiff has impeded the

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Court's ability to move this case forward by failing to respond to Defendant's motion to

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dismiss and motion to strike, and by failing to respond to the Court's September 30, 2013

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Order.

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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 at

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990 (recognizing court's need to control its own docket); see also Ferdik, 963 F.2d at 1261

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(non-compliance with a court's order diverts "valuable time that [the court] could have

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devoted to other major and serious criminal and civil cases on its docket"). The Court

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cannot manage its docket if it maintains cases where, as here, a Plaintiff disregards Court

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Orders and fails to prosecute his case. The Court must devote its limited resources to cases

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in which the litigants are actually proceeding.
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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 to Defendant's motions or the Court's September 30, 2013 Order. These facts

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weigh strongly in favor of dismissal. See Yourish, 191 F.3d at 991-992.

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

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dismissal. The Court issued an Order affording Plaintiff additional time to respond to the

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Defendant's motions and expressly warned him that the failure to comply with the Court's

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September 30, 2013 Order would be deemed sufficient grounds to dismiss this action. "[A]

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district court's warning to a party that failure to obey the court's order will result in

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dismissal can satisfy the 'consideration of [less drastic sanctions]' requirement." Ferdik,

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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 dismissing this action in its entirety. Pagtalunan, 291 F.3d at 643 (affirming

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dismissal where three factors favored dismissal, while two factors weighed against

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dismissal). Accordingly,

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IT IS HEREBY ORDERED THAT the instant action is DISMISSED WITHOUT

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PREJUDICE pursuant to Rule 41(b). The Clerk shall close the file and terminate all

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pending matters.

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IT IS SO ORDERED.
Dated:

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

10/9/2013

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