Smith v. City of Berkeley et al

Filing 72

ORDER DISMISSING CASE. ***Civil Case Terminated.*** Signed by Judge Haywood S. Gilliam, Jr. on 3/1/2018. (ndrS, COURT STAFF) (Filed on 3/1/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER SMITH,
Plaintiff,

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United States District Court
Northern District of California

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v.

Case No. 13-cv-04947-HSG
ORDER DISMISSING CASE
Re: Dkt. No. 70

CITY OF BERKELEY, et al.,
Defendants.

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On January 18, 2018, Defendants filed a motion for summary judgment. Dkt. No. 68.

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Plaintiff failed to file an opposition. On February 7, 2018, Defendants notified the Court of

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Plaintiff’s non-opposition to the motion. Dkt. No. 69. Plaintiff did not respond. On February 14,

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2018, the Court directed Plaintiff to show cause why summary judgment should not be granted

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based on Plaintiff’s failure to oppose Defendants’ motion. Dkt. No. 70. Again, Plaintiff did not

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respond. On February 22, 2018, Plaintiff failed to appear at the hearing on Defendants’ pending

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motion. Dkt. No. 71. The Court stated, on the record, that a dismissal for failure to prosecute

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would likely result. See id. Plaintiff has not submitted anything to the Court since that time.

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A court may dismiss a claim for failure to prosecute or for failure to comply with a court

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order after weighing 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 defendants; (4) the

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availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on

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their merits. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). A court has discretion to

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dismiss an action under Rule 41(b) with or without prejudice. See Al–Torki v. Kaempen, 78 F.3d

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1381, 1385 (9th Cir. 1996).

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Here, the first two factors, the public’s interest in expeditious resolution of litigation and

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the Court’s need to manage its docket, weigh in favor of dismissal. This case has been pending

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since 2013. See Dkt. No. 1. The case was stayed from March 2014 to April 2017 due to related

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proceedings in state court. See Dkt. No. 24. Since early 2017, Plaintiff has consistently failed to

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advance his case. For instance, Plaintiff failed to respond when the Court ordered the parties to

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file a joint status update regarding the status of the parties’ state court litigation. See Dkt. No. 48

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at 1. The Court held a case management conference the following week, and Plaintiff did not

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appear. See Dkt. No. 51. The stay was lifted only after Defendants filed a statement of non-

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opposition to lifting the stay. See Dkt. No. 52. While Plaintiff filed a response to Defendants’

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motion to dismiss, he did so six months ago. See Dkt. No. 64, 65. In the intervening period,
Plaintiff failed to (1) oppose Defendants’ summary judgment motion; (2) respond to the Court’s

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United States District Court
Northern District of California

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subsequent order to show cause; and (3) attend the hearing on Defendants’ summary judgment

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motion. See Dkt. Nos. 68–71. Because of Plaintiff’s sustained silence, this action remains at a

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standstill.
The third factor, risk of prejudice to the Defendants, also weighs in favor of dismissal.

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There is a rebuttable presumption of prejudice to a defendant that arises when a plaintiff

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unreasonably delays litigation. In re Eisen, 31 F.3d 1447, 1452–53 (9th Cir. 1994). As the Court

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explained above, Plaintiff’s unexplained absences—including the future delays that will likely

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result—are unreasonable.
The fourth factor, public policy favoring disposition of cases on their merits, generally

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weighs against dismissal. Nevertheless, here, the Court has no reason to believe that this case will

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proceed to trial. Plaintiff appears to have abandoned his action, having missed several Court-

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ordered deadlines in the past six months. See Dkt. No. 65.
Lastly, the fifth factor, availability of less drastic sanctions, also weighs in favor of

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dismissal. As stated above, this case simply is not moving toward resolution. Without some

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action by Plaintiff, the case cannot be resolved appropriately nor can the Court fashion a lesser

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sanction.

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//

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//
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Accordingly, the Court DISMISSES the case without prejudice. The clerk is directed to
enter judgment in favor of Defendants and against Plaintiff and to close the case.

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IT IS SO ORDERED.
Dated: 3/1/2018
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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United States District Court
Northern District of California

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