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)

Case 3:20-cv-00575-AJB-WVG Document 10 Filed 11/17/20 PageID.36 Page 1 of 3

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SCOTT SCHUTZA

Case No.: 3:20-cv-00575-AJB-WVG

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Plaintiffs,
v.

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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)

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Defendants.

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On October 30, 2020, the Court issued Plaintiff an Order to Show Cause (“OSC”)

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why Defendants’ motion to dismiss should not be granted and why this action should not

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be dismissed for failure to prosecute. Plaintiff did not file a response to the OSC. For the

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reasons set forth, the Court dismisses this action for failure to prosecute and denies

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Defendants’ motion to dismiss as moot.

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I.

LEGAL STANDARD

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Federal Rule of Civil Procedure 41(b) grants district courts the authority

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to dismiss actions sua sponte for failure to prosecute or to comply with court orders. Link

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v. Wabash R.R. Co., 370 U.S. 626, 629–31 (1962) (“The power to invoke this sanction is

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necessary in order to prevent undue delays in the disposition of pending cases and to avoid

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congestion in the calendars of the District Courts.”). Dismissal, however, is a harsh penalty
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and is to be imposed only in extreme circumstances. Henderson v. Duncan, 779 F.2d 1421,

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1423 (9th Cir. 1986) (citing Raiford v. Pounds, 640 F.2d 944, 945 (9th Cir. 1981) (per

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curiam)). In considering whether to dismiss an action for failure to prosecute or to comply

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with a court order, the Court must weigh five factors: “(1) the public’s interest in

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expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk

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of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and

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(5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza,

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291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th

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Cir. 1992)).

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II.

DISCUSSION

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Here, as to the first factor, “[t]he public’s interest in expeditious resolution of

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

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Cir.1999). Regarding the second factor, the Court must be able to manage its docket

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“without being subject to routine noncompliance of litigants.” Pagtalunan, 291 F.3d at

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642; see also Ferdik, 963 F.2d at 1261 (noting that noncompliance with a court’s order

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diverts “valuable time that [the court] could have devoted to other major and serious

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criminal and civil cases on its docket”). This is especially true where, as here, Plaintiff has

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made no attempt to respond to Defendants’ motion to dismiss or the Court’s subsequent

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OSC. This case cannot proceed without Plaintiff’s participation. The second factor

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therefore weighs in favor of dismissal. The third factor also favors dismissal because

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Plaintiff’s failure to take action on this case has resulted in unreasonable delay, which is

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presumed to be prejudicial to Defendants. See In re Eisen, 31 F.3d 1447, 1453 (9th Cir.

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1994).

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As to the fourth factor, the Court has considered less drastic alternatives by providing

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Plaintiff additional notice of Defendant’s motion to dismiss, additional time to respond to

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the motion to dismiss, an opportunity to explain his failure to respond to the motion to

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dismiss, and an opportunity to explain why the Court should not dismiss his case for failure

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to prosecute. (Doc. No. 8.) Plaintiff took no action in response to such notice and
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opportunity. This weighs strongly in favor of dismissal. See Ferdik, 963 F.2d at 1262.

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Although the fifth factor, the public policy favoring disposition of cases on their merits,

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weighs against dismissal, the cumulative weight of the other factors overcomes it. See

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Pagtalunan, 291 F.3d at 643 (finding that the district court did not abuse its discretion in

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dismissing case where three of the five factors weighed in favor of dismissal). Based on

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the foregoing, the Court finds that the balance of factors in this case weigh in favor of

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dismissal.

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CONCLUSION

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Accordingly, this action is DISMISSED, with prejudice, for Plaintiff’s failure to

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prosecute, and Defendants’ motion to dismiss is DENIED as moot. The Clerk of Court is

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DIRECTED to enter judgment and close this case.

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IT IS SO ORDERED.
Dated: November 17, 2020

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