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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CHRISTOPHER SMITH, Plaintiff, 8 9 10 United States District Court Northern District of California 11 v. Case No. 13-cv-04947-HSG ORDER DISMISSING CASE Re: Dkt. No. 70 CITY OF BERKELEY, et al., Defendants. 12 13 On January 18, 2018, Defendants filed a motion for summary judgment. Dkt. No. 68. 14 Plaintiff failed to file an opposition. On February 7, 2018, Defendants notified the Court of 15 Plaintiff’s non-opposition to the motion. Dkt. No. 69. Plaintiff did not respond. On February 14, 16 2018, the Court directed Plaintiff to show cause why summary judgment should not be granted 17 based on Plaintiff’s failure to oppose Defendants’ motion. Dkt. No. 70. Again, Plaintiff did not 18 respond. On February 22, 2018, Plaintiff failed to appear at the hearing on Defendants’ pending 19 motion. Dkt. No. 71. The Court stated, on the record, that a dismissal for failure to prosecute 20 would likely result. See id. Plaintiff has not submitted anything to the Court since that time. 21 A court may dismiss a claim for failure to prosecute or for failure to comply with a court 22 order after weighing the following factors: (1) the public’s interest in expeditious resolution of 23 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to defendants; (4) the 24 availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on 25 their merits. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). A court has discretion to 26 dismiss an action under Rule 41(b) with or without prejudice. See Al–Torki v. Kaempen, 78 F.3d 27 1381, 1385 (9th Cir. 1996). 28 Here, the first two factors, the public’s interest in expeditious resolution of litigation and 1 the Court’s need to manage its docket, weigh in favor of dismissal. This case has been pending 2 since 2013. See Dkt. No. 1. The case was stayed from March 2014 to April 2017 due to related 3 proceedings in state court. See Dkt. No. 24. Since early 2017, Plaintiff has consistently failed to 4 advance his case. For instance, Plaintiff failed to respond when the Court ordered the parties to 5 file a joint status update regarding the status of the parties’ state court litigation. See Dkt. No. 48 6 at 1. The Court held a case management conference the following week, and Plaintiff did not 7 appear. See Dkt. No. 51. The stay was lifted only after Defendants filed a statement of non- 8 opposition to lifting the stay. See Dkt. No. 52. While Plaintiff filed a response to Defendants’ 9 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 11 United States District Court Northern District of California 10 subsequent order to show cause; and (3) attend the hearing on Defendants’ summary judgment 12 motion. See Dkt. Nos. 68–71. Because of Plaintiff’s sustained silence, this action remains at a 13 standstill. The third factor, risk of prejudice to the Defendants, also weighs in favor of dismissal. 14 15 There is a rebuttable presumption of prejudice to a defendant that arises when a plaintiff 16 unreasonably delays litigation. In re Eisen, 31 F.3d 1447, 1452–53 (9th Cir. 1994). As the Court 17 explained above, Plaintiff’s unexplained absences—including the future delays that will likely 18 result—are unreasonable. The fourth factor, public policy favoring disposition of cases on their merits, generally 19 20 weighs against dismissal. Nevertheless, here, the Court has no reason to believe that this case will 21 proceed to trial. Plaintiff appears to have abandoned his action, having missed several Court- 22 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 23 24 dismissal. As stated above, this case simply is not moving toward resolution. Without some 25 action by Plaintiff, the case cannot be resolved appropriately nor can the Court fashion a lesser 26 sanction. 27 // 28 // 2 1 2 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. 3 4 5 6 7 IT IS SO ORDERED. Dated: 3/1/2018 ______________________________________ HAYWOOD S. GILLIAM, JR. United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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