Sukumaran v. U.S. DHS/ICE-El Centro et al
Filing
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ORDER Granting 34 Defendant Freddy Carreno's Motion to Dismiss for Lack of Prosecution. Signed by Judge Cynthia Bashant on 2/3/16. (All non-registered users served via U.S. Mail Service)(dlg)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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MUTHU SUKUMARAN,
Plaintiff,
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Case No. 14-cv-00967-BAS(JMA)
ORDER GRANTING
DEFENDANT FREDDY
CARRENO’S MOTION TO
DISMISS FOR LACK OF
PROSECUTION PURSUANT TO
FED. R. CIV. P. 41(b)
v.
U.S. DHS/ICE-EL CENTRO, ET
AL.,
(ECF No. 34)
Defendants.
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Plaintiff Muthu Sukumaran (“Plaintiff”), proceeding pro se and in forma
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pauperis, commenced this civil rights action on April 17, 2014. (See ECF Nos. 1, 6.)
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Presently before the Court is a motion to dismiss for lack of prosecution pursuant to
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Federal Rule of Civil Procedure 41(b) filed by Defendant Freddy Carreno. (ECF No.
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34.) No opposition was filed.
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The Court finds this motion suitable for determination on the papers submitted
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and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons set forth below,
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the Court GRANTS Defendant Carreno’s motion to dismiss pursuant to Federal Rule
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of Civil Procedure 41(b).
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///
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14cv967
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I.
BACKGROUND
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Plaintiff, previously an immigration detainee at the U.S. Department of
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Homeland Security’s Immigration and Customs Enforcement’s Processing Center in
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El Centro, California,1 commenced this civil rights action on April 17, 2014. (ECF
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No. 1.) On August 29, 2014, the Court dismissed without prejudice Plaintiff’s claims
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against all defendants except for Defendants Auhl, Chan, and Carreno. (ECF No. 6.)
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On October 24, 2014, Defendant Carreno filed an Answer to the Complaint. (ECF
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No. 8.) On November 12, 2014, Defendant Auhl filed a motion to dismiss for lack
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of jurisdiction, which was granted with prejudice on May 15, 2015. (ECF Nos. 11,
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31.) Plaintiff, through the United States Marshal Service, was unable to serve
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Defendant Chan. (See ECF Nos. 28-30.)
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Plaintiff participated in a Case Management Conference (“CMC”) on
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December 8, 2014. (ECF No. 13.) After Defendant Auhl was dismissed, a telephonic
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CMC was set by United States Magistrate Judge Jan M. Adler for June 3, 2015. (ECF
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No. 32.) The CMC did not go forward due to Plaintiff’s failure to appear. (ECF No.
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33.) Defendant Carreno represents that no discovery has been conducted and no
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depositions have been set in this case. (ECF No. 34 at p. 4.) On November 23, 2015,
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Defendant Carreno filed a motion to dismiss for lack of prosecution pursuant to
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Federal Rule of Civil Procedure 41(b) with a hearing date of January 19, 2016. (ECF
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No. 34.) Plaintiff did not file an opposition.
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II.
LEGAL STANDARD
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Federal Rule of Civil Procedure 41(b) provides that “[i]f the plaintiff fails to
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prosecute or to comply with these rules or a court order, a defendant may move to
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dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). “Dismissal under
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Rule 41(b) is a sanction, to be imposed only in ‘extreme circumstances.’” Edwards
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v. Marin Park, Inc., 356 F.3d 1058, 1063 (9th Cir. 2004) (citing Dahl v. City of
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Plaintiff filed a Notice of Change of Address to a location in Maryland
on March 4, 2015. (ECF No. 26.)
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Huntington Beach, 84 F.3d 363, 366 (9th Cir. 1996)). Under Ninth Circuit precedent,
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a district court must consider the following factors before involuntarily dismissing a
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case: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s
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need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public
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policy favoring disposition of cases on their merits; and (5) the availability of less
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drastic alternatives.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)
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(citing Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)); see also
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Nealy v. Transportacion Maritma Mexicana, S.A., 662 F.2d 1275, 1278-79 (9th Cir.
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1980). Dismissal will be affirmed where at least four factors support dismissal, or
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where at least three factors strongly support dismissal. Id. Although preferred, it is
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not necessary for a district court to make explicit findings in order to show that it has
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considered these factors. Id.
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III.
DISCUSSION
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Upon consideration of the factors, the Court finds that all of the factors, with
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the exception of the public policy favoring disposition of a case on its merits, strongly
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support dismissal. Plaintiff has not appeared in this case since March 4, 2015, when
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he filed a Notice of Change of Address. (See ECF No. 26.) He failed to appear at
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the CMC on May 15, 2015. (See ECF No. 33.) Defendant Carreno represents that
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“[P]laintiff has done nothing to prosecute his case” since the CMC on December 8,
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2014. (ECF No. 34-1 at ¶ 9.) Given Plaintiff’s failure to prosecute his case for over
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a year, the Court finds the public’s interest in expeditious resolution of litigation and
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its own need to manage its docket strongly support dismissal.
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The factors which consider the risk of prejudice to Defendant Carreno and the
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availability of less drastic alternatives also strongly support dismissal. Plaintiff bears
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the burden of presenting evidence excusing his delay in prosecuting his case. See
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Nealy, 662 F.2d at 1280-81. Plaintiff has not opposed this motion or presented any
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evidence excusing his delay. “[I]f the plaintiff proffers no pleading or presents no
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proof on the issue of (reasonableness [of the delay]), the defendant wins.” Id. at 1280
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(citing Larios v. Victory Carriers, Inc., 316 F.2d 63, 67 (2d Cir. 1963)). The burden
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of production does not shift to the defendant to show at least some actual prejudice
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unless Plaintiff proffers a non-frivolous excuse for his delay. See id. at 1281.
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Therefore, Defendant Carreno was not required to present evidence of some actual
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prejudice. However, as Defendant Carreno pointed out, this is a civil rights action in
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which Plaintiff claims Defendant Carreno violated his constitutional right to adequate
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medical care while in custody, and in the approximately twenty-two (22) months
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since the filing of the Complaint, “[w]itnesses have likely relocated . . . ; memories
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concerning [P]laintiff’s stay at the detention facility have likely faded; and evidence
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may no longer exist (i.e., [P]laintiff’s medical file) given that [P]laintiff was a
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temporary detainee, and has since relocated to Maryland.” (ECF Nos. 34-1 at ¶ 10;
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and 6 at p. 13.) Given Plaintiff’s lengthy and unreasonable delay, which he has failed
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to excuse, and the high possibility of prejudice to Defendant Carreno, the Court finds
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these factors strongly weigh in favor of dismissal. See Alexander v. Pac. Mar. Assoc.,
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434 F.2d 281, 283 (9th Cir. 1971) (“Unreasonable delay creates a presumption of
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injury to [a defendant’s] defenses.”).
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Lastly, Plaintiff’s failure to appear at the telephonic CMC, pursue discovery,
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or oppose this motion does not leave the Court with less drastic alternatives. As the
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Court finds that four of the five factors strongly weigh in favor of dismissal, the Court
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GRANTS Defendant Carreno’s motion to dismiss.
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IV.
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CONCLUSION & ORDER
Based on the foregoing, the Court GRANTS Defendant Carreno’s motion to
dismiss pursuant to Federal Rule of Civil Procedure 41(b) (ECF No. 34).
IT IS SO ORDERED.
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DATED: February 3, 2016
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