Schutza v. 8203 Winter Gardens LLC et al

Filing 10

ORDER: (1) Dismissing This Action (2) Denying the Motion to Dismiss as Moot (Doc. No. 5 ). This action is dismissed, with prejudice, for Plaintiff's failure to prosecute, and Defendants' motion to dismiss is denied as moot. Signed by Judge Anthony J. Battaglia on 11/17/2020. (jrm) (dsn)

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Case 3:20-cv-00575-AJB-WVG Document 10 Filed 11/17/20 PageID.36 Page 1 of 3 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 SCOTT SCHUTZA Case No.: 3:20-cv-00575-AJB-WVG 10 11 Plaintiffs, v. 12 13 14 15 ORDER: (1) DISMISSING THIS ACTION 8203 WINTER GARDENS LLC, a California Limited Liability Company, et al., (2) DENYING THE MOTION TO DISMISS AS MOOT (Doc. No. 5) 16 Defendants. 17 18 On October 30, 2020, the Court issued Plaintiff an Order to Show Cause (“OSC”) 19 why Defendants’ motion to dismiss should not be granted and why this action should not 20 be dismissed for failure to prosecute. Plaintiff did not file a response to the OSC. For the 21 reasons set forth, the Court dismisses this action for failure to prosecute and denies 22 Defendants’ motion to dismiss as moot. 23 I. LEGAL STANDARD 24 Federal Rule of Civil Procedure 41(b) grants district courts the authority 25 to dismiss actions sua sponte for failure to prosecute or to comply with court orders. Link 26 v. Wabash R.R. Co., 370 U.S. 626, 629–31 (1962) (“The power to invoke this sanction is 27 necessary in order to prevent undue delays in the disposition of pending cases and to avoid 28 congestion in the calendars of the District Courts.”). Dismissal, however, is a harsh penalty 1 3:20-cv-00575-AJB-WVG Case 3:20-cv-00575-AJB-WVG Document 10 Filed 11/17/20 PageID.37 Page 2 of 3 1 and is to be imposed only in extreme circumstances. Henderson v. Duncan, 779 F.2d 1421, 2 1423 (9th Cir. 1986) (citing Raiford v. Pounds, 640 F.2d 944, 945 (9th Cir. 1981) (per 3 curiam)). In considering whether to dismiss an action for failure to prosecute or to comply 4 with a court order, the Court must weigh five factors: “(1) the public’s interest in 5 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk 6 of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and 7 (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 8 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th 9 Cir. 1992)). 10 II. DISCUSSION 11 Here, as to the first factor, “[t]he public’s interest in expeditious resolution of 12 litigation always favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th 13 Cir.1999). Regarding the second factor, the Court must be able to manage its docket 14 “without being subject to routine noncompliance of litigants.” Pagtalunan, 291 F.3d at 15 642; see also Ferdik, 963 F.2d at 1261 (noting that noncompliance with a court’s order 16 diverts “valuable time that [the court] could have devoted to other major and serious 17 criminal and civil cases on its docket”). This is especially true where, as here, Plaintiff has 18 made no attempt to respond to Defendants’ motion to dismiss or the Court’s subsequent 19 OSC. This case cannot proceed without Plaintiff’s participation. The second factor 20 therefore weighs in favor of dismissal. The third factor also favors dismissal because 21 Plaintiff’s failure to take action on this case has resulted in unreasonable delay, which is 22 presumed to be prejudicial to Defendants. See In re Eisen, 31 F.3d 1447, 1453 (9th Cir. 23 1994). 24 As to the fourth factor, the Court has considered less drastic alternatives by providing 25 Plaintiff additional notice of Defendant’s motion to dismiss, additional time to respond to 26 the motion to dismiss, an opportunity to explain his failure to respond to the motion to 27 dismiss, and an opportunity to explain why the Court should not dismiss his case for failure 28 to prosecute. (Doc. No. 8.) Plaintiff took no action in response to such notice and 2 3:20-cv-00575-AJB-WVG Case 3:20-cv-00575-AJB-WVG Document 10 Filed 11/17/20 PageID.38 Page 3 of 3 1 opportunity. This weighs strongly in favor of dismissal. See Ferdik, 963 F.2d at 1262. 2 Although the fifth factor, the public policy favoring disposition of cases on their merits, 3 weighs against dismissal, the cumulative weight of the other factors overcomes it. See 4 Pagtalunan, 291 F.3d at 643 (finding that the district court did not abuse its discretion in 5 dismissing case where three of the five factors weighed in favor of dismissal). Based on 6 the foregoing, the Court finds that the balance of factors in this case weigh in favor of 7 dismissal. 8 III. CONCLUSION 9 Accordingly, this action is DISMISSED, with prejudice, for Plaintiff’s failure to 10 prosecute, and Defendants’ motion to dismiss is DENIED as moot. The Clerk of Court is 11 DIRECTED to enter judgment and close this case. 12 13 IT IS SO ORDERED. Dated: November 17, 2020 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 3:20-cv-00575-AJB-WVG

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