1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TRUTH AKINS, et al., Case No. 21-cv-1824-BAS-WVG
12 Plaintiffs, ORDER DISMISSING ACTION FOR 13 v. FAILURE TO SHOW CAUSE
14 UNITED STATES OF AMERICA, et al.,
15 Defendants. 16 17 On December 13, 2021, this Court ordered Plaintiff Truth Akins to show cause by 18 no later than January 31, 2022 as to why this action should not be dismissed for her failure 19 to file an amended pleading addressing the deficiencies identified in this Court’s Order 20 dismissing her Complaint, dated November 9, 2021 (Dismissal Order, ECF No. 4). (Order 21 to Show Cause, ECF No. 5.) This Court warned Plaintiff that her failure to do so would 22 result in dismissal of this case. (Id.) Plaintiff’s deadline to show cause has come and gone, 23 yet Plaintiff has not filed an amended pleading. For the foregoing reasons, this Court 24 DISMISSES WITHOUT PREJUDICE this action. 25 I. BACKGROUND 26 Plaintiff, proceeding pro se, commenced this action on November 9, 2021. (Compl, 27 ECF No. 1.) Her Complaint asserted on behalf of herself, along with ten relatives who she 28 named as co-defendants, a single claim under federal criminal statute, 18 U.S.C. § 1589(a), 1 Forced Labor. The Court dismissed without prejudice all claims Plaintiff sought to 2 prosecute as a pro se litigant on behalf of relatives pursuant to 28 U.S.C. § 1654. The 3 Court further dismissed without prejudice Plaintiff’s own claim on several grounds, 4 including that Plaintiff (1) failed to state a claim, (2) sought damages from Defendants 5 immune from suit, (3) instituted an action against a Defendant who clearly is deceased, and 6 (4) lacked constitutional standing. (See Dismissal Order 6–15.) This Court granted 7 Plaintiff leave to file an amended pleading “no later than December 9, 2021,” and warned 8 that “[f]ailure to timely file an amended complaint will result in dismissal of this action 9 with prejudice.” (Id. 15.) 10 On December 13, 2021, the Court issued an Order to Show Cause why this case 11 should not be dismissed for Plaintiff’s failure to file an amended pleading consistent with 12 the Dismissal Order and Federal Rule of Civil Procedure (“Rule”) 4(m). The Order to 13 Show Cause directed Plaintiff that cause could be shown by filing an amended pleading 14 “no later than January 31, 2022[.]” (Order to Show Cause 2.) The Order to Show Cause 15 warned that failure to do so would result in the dismissal without prejudice of Plaintiff’s 16 action for failure to prosecute pursuant to Rule 4(m) or for failure to comply with Court 17 orders. (Id.) January 31, 2022 has come and gone, yet Plaintiff has not filed an amended 18 pleading. 19 II. LEGAL STANDARD 20 A district court may dismiss a plaintiff’s action for her failure to prosecute or failure 21 to comply with a court order. See Fed. R. Civ. P. 41(b); Pagtalunan v. Galaza, 291 F.3d 22 639, 642 (9th Cir. 2002); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (holding 23 that a district court may dismiss an action for failure to comply with any order of the court); 24 Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962) (holding courts are vested with an 25 inherent power “to manage their own affairs so as to achieve the orderly and expeditious 26 disposition of cases”). Although due process generally requires that the party have notice 27 and opportunity to be heard before dismissal, when a party may be said to have knowledge 28 1 of the consequences of his failure to act, the court may dispense with the necessity of 2 advance notice and a hearing. Link, 370 U.S. at 630–32. 3 “Despite this authority, dismissal is a harsh penalty and, therefore, it should only be 4 imposed in extreme circumstances.” Ferdik, 963 F.2d at 1260. Therefore, to determine 5 whether dismissal under its inherent authority is appropriate, “the district court must weigh 6 five factors, including: (1) the public’s interest in expeditious resolution of litigation; (2) 7 the court’s need to manage its docket; (3) the risk of prejudice to defendants; (4) the public 8 policy of favoring disposition of cases on their merits; and (5) the availability of less drastic 9 alternatives.” Id. at 1260–61 (internal quotations omitted). 10 Generally, these five factors weigh in favor of sua sponte dismissal where a plaintiff 11 has failed to prosecute a case or comply with an order of the court. See Eldridge v. Block, 12 832 F.2d 1132, 1136 (9th Cir. 1987); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 13 F.3d 683, 689 (9th Cir. 2005). 14 III. ANALYSIS 15 On balance, the above-mentioned factors weigh decisively in favor of dismissal 16 because Plaintiff has not demonstrated compliance with the service requirements under the 17 Federal Rules of Civil Procedure and this Court’s OSC. 18 A. Public’s Interest in Expeditious Resolution 19 “[T]he public’s interest in expeditious resolution of litigation always favors 20 dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). In this case, 21 Plaintiff’s inaction has undermined expeditious resolution. The Court’s attempt to move 22 litigation along has been met by Plaintiff with silence. The Court cannot await indefinitely 23 Plaintiff’s response to the Court’s directive to file a proof of service. Thus, the Court finds 24 that this factor weighs in favor of dismissal. 25 B. Court’s Need to Manage its Docket 26 A district court is best positioned to determine whether the delay in a particular case 27 interferes with docket management and the public interest. Ash v. Cuetkov, 739 F.2d 493, 28 496 (9th Cir. 1984). The Court finds that Plaintiff’s failure to complete the fundamental 1 step of showing proof of service—despite the Court’s OSC—has resulted in a continued 2 delay in the prosecution of this case and has “impermissibly allowed [P]laintiff to control 3 the pace of the docket rather than the [C]ourt.” See Smith v. Cty. of Riverside Sheriff Dep’t, 4 No. ED CV 17-1969 DSF (SP), 2019 WL 7865170, at *3 (C.D. Cal. Nov. 18, 2019) (citing 5 Pagtalunan, 291 F.3d at 642 (“It is incumbent on the Court to manage its docket without 6 being subject to routine noncompliance of litigants.”)). Consequently, this factor weighs 7 in favor of dismissal. 8 C. Prejudice to Defendants 9 “To prove prejudice, a defendant must establish that [a] plaintiff’s actions impaired 10 defendant’s ability to proceed to trial or threatened to interfere with the rightful decision of 11 the case.” Pagtalunan, 291 F.3d at 642 (citing Malone v. U.S. Postal Serv., 833 F.2d 128, 12 131 (9th Cir. 1987)). “The pendency of the lawsuit is not sufficiently prejudicial itself to 13 warrant dismissal.” Yourish, 191 F.3d at 991; accord Ash, 739 F.2d at 496. However, 14 “even in the absence of a showing of actual prejudice to the defendant,” prejudice is 15 presumed from unreasonable delay. In re Eisen,
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TRUTH AKINS, et al., Case No. 21-cv-1824-BAS-WVG
12 Plaintiffs, ORDER DISMISSING ACTION FOR 13 v. FAILURE TO SHOW CAUSE
14 UNITED STATES OF AMERICA, et al.,
15 Defendants. 16 17 On December 13, 2021, this Court ordered Plaintiff Truth Akins to show cause by 18 no later than January 31, 2022 as to why this action should not be dismissed for her failure 19 to file an amended pleading addressing the deficiencies identified in this Court’s Order 20 dismissing her Complaint, dated November 9, 2021 (Dismissal Order, ECF No. 4). (Order 21 to Show Cause, ECF No. 5.) This Court warned Plaintiff that her failure to do so would 22 result in dismissal of this case. (Id.) Plaintiff’s deadline to show cause has come and gone, 23 yet Plaintiff has not filed an amended pleading. For the foregoing reasons, this Court 24 DISMISSES WITHOUT PREJUDICE this action. 25 I. BACKGROUND 26 Plaintiff, proceeding pro se, commenced this action on November 9, 2021. (Compl, 27 ECF No. 1.) Her Complaint asserted on behalf of herself, along with ten relatives who she 28 named as co-defendants, a single claim under federal criminal statute, 18 U.S.C. § 1589(a), 1 Forced Labor. The Court dismissed without prejudice all claims Plaintiff sought to 2 prosecute as a pro se litigant on behalf of relatives pursuant to 28 U.S.C. § 1654. The 3 Court further dismissed without prejudice Plaintiff’s own claim on several grounds, 4 including that Plaintiff (1) failed to state a claim, (2) sought damages from Defendants 5 immune from suit, (3) instituted an action against a Defendant who clearly is deceased, and 6 (4) lacked constitutional standing. (See Dismissal Order 6–15.) This Court granted 7 Plaintiff leave to file an amended pleading “no later than December 9, 2021,” and warned 8 that “[f]ailure to timely file an amended complaint will result in dismissal of this action 9 with prejudice.” (Id. 15.) 10 On December 13, 2021, the Court issued an Order to Show Cause why this case 11 should not be dismissed for Plaintiff’s failure to file an amended pleading consistent with 12 the Dismissal Order and Federal Rule of Civil Procedure (“Rule”) 4(m). The Order to 13 Show Cause directed Plaintiff that cause could be shown by filing an amended pleading 14 “no later than January 31, 2022[.]” (Order to Show Cause 2.) The Order to Show Cause 15 warned that failure to do so would result in the dismissal without prejudice of Plaintiff’s 16 action for failure to prosecute pursuant to Rule 4(m) or for failure to comply with Court 17 orders. (Id.) January 31, 2022 has come and gone, yet Plaintiff has not filed an amended 18 pleading. 19 II. LEGAL STANDARD 20 A district court may dismiss a plaintiff’s action for her failure to prosecute or failure 21 to comply with a court order. See Fed. R. Civ. P. 41(b); Pagtalunan v. Galaza, 291 F.3d 22 639, 642 (9th Cir. 2002); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (holding 23 that a district court may dismiss an action for failure to comply with any order of the court); 24 Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962) (holding courts are vested with an 25 inherent power “to manage their own affairs so as to achieve the orderly and expeditious 26 disposition of cases”). Although due process generally requires that the party have notice 27 and opportunity to be heard before dismissal, when a party may be said to have knowledge 28 1 of the consequences of his failure to act, the court may dispense with the necessity of 2 advance notice and a hearing. Link, 370 U.S. at 630–32. 3 “Despite this authority, dismissal is a harsh penalty and, therefore, it should only be 4 imposed in extreme circumstances.” Ferdik, 963 F.2d at 1260. Therefore, to determine 5 whether dismissal under its inherent authority is appropriate, “the district court must weigh 6 five factors, including: (1) the public’s interest in expeditious resolution of litigation; (2) 7 the court’s need to manage its docket; (3) the risk of prejudice to defendants; (4) the public 8 policy of favoring disposition of cases on their merits; and (5) the availability of less drastic 9 alternatives.” Id. at 1260–61 (internal quotations omitted). 10 Generally, these five factors weigh in favor of sua sponte dismissal where a plaintiff 11 has failed to prosecute a case or comply with an order of the court. See Eldridge v. Block, 12 832 F.2d 1132, 1136 (9th Cir. 1987); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 13 F.3d 683, 689 (9th Cir. 2005). 14 III. ANALYSIS 15 On balance, the above-mentioned factors weigh decisively in favor of dismissal 16 because Plaintiff has not demonstrated compliance with the service requirements under the 17 Federal Rules of Civil Procedure and this Court’s OSC. 18 A. Public’s Interest in Expeditious Resolution 19 “[T]he public’s interest in expeditious resolution of litigation always favors 20 dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). In this case, 21 Plaintiff’s inaction has undermined expeditious resolution. The Court’s attempt to move 22 litigation along has been met by Plaintiff with silence. The Court cannot await indefinitely 23 Plaintiff’s response to the Court’s directive to file a proof of service. Thus, the Court finds 24 that this factor weighs in favor of dismissal. 25 B. Court’s Need to Manage its Docket 26 A district court is best positioned to determine whether the delay in a particular case 27 interferes with docket management and the public interest. Ash v. Cuetkov, 739 F.2d 493, 28 496 (9th Cir. 1984). The Court finds that Plaintiff’s failure to complete the fundamental 1 step of showing proof of service—despite the Court’s OSC—has resulted in a continued 2 delay in the prosecution of this case and has “impermissibly allowed [P]laintiff to control 3 the pace of the docket rather than the [C]ourt.” See Smith v. Cty. of Riverside Sheriff Dep’t, 4 No. ED CV 17-1969 DSF (SP), 2019 WL 7865170, at *3 (C.D. Cal. Nov. 18, 2019) (citing 5 Pagtalunan, 291 F.3d at 642 (“It is incumbent on the Court to manage its docket without 6 being subject to routine noncompliance of litigants.”)). Consequently, this factor weighs 7 in favor of dismissal. 8 C. Prejudice to Defendants 9 “To prove prejudice, a defendant must establish that [a] plaintiff’s actions impaired 10 defendant’s ability to proceed to trial or threatened to interfere with the rightful decision of 11 the case.” Pagtalunan, 291 F.3d at 642 (citing Malone v. U.S. Postal Serv., 833 F.2d 128, 12 131 (9th Cir. 1987)). “The pendency of the lawsuit is not sufficiently prejudicial itself to 13 warrant dismissal.” Yourish, 191 F.3d at 991; accord Ash, 739 F.2d at 496. However, 14 “even in the absence of a showing of actual prejudice to the defendant,” prejudice is 15 presumed from unreasonable delay. In re Eisen, 31 F.3d 1447, 1552–53 (9th Cir. 1994); 16 see also Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976) (“The law presumes 17 injury from unreasonable delay.”). 18 “Whether prejudice is sufficient to support an order of dismissal is in part judged 19 with reference to the strength of the plaintiff’s excuse for default.” Malone, 833 F.2d at 20 131. Plaintiff was not responsive to the OSC, thus, her reasons for failing to prosecute are 21 unknown. See Garcia v. Fed. Bureau of Prisons, No. 5:19-CV-00008-PSG-MAA, 2019 22 WL 6040412, at *4 (C.D. Cal. Oct. 21, 2019) (Report & Recommendation), adopted, 2019 23 WL 6039943 (C.D. Cal. Nov. 12, 2019). Because the presumption of prejudice arises from 24 a plaintiff’s unexplained failure to prosecute, the third factor favors dismissal. See id. at 25 *4 (citing Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002)). 26 D. Public Policy 27 Public policy favors disposition of cases on the merits. Pagtalunan, 291 F.3d at 643. 28 Thus, the Court recognizes that this factor weighs against dismissal. 1 E. Availability of Less Drastic Alternatives 2 In assessing this factor, the Court considers whether alternatives less drastic than 3 || dismissal are feasible given the circumstances of the case. Jn re Eisen, 31 F.3d at 1455. 4 ||“[A] district court’s warning to a party that [her] failure to obey the court’s order will result 5 ||in dismissal can satisfy the ‘consideration of alternatives’ requirement.” Ferdik, 963 F.2d 6 1262. 7 When it issued its OSC, this Court afforded Plaintiff with a less drastic alternative 8 dismissal. It did so by extending Plaintiff's deadline to file an amended complaint by 9 one month and warning Plaintiff of the consequences failure to do so would entail. 10 |} As mentioned above, the OSC was met with silence. Thus, this Court concludes that less 11 drastic alternatives to dismissal are not available in these circumstances. 12 On balance, four out of five factors weigh in favor of dismissal. Accordingly, the 13 ||Court exercises its inherent authority to dismiss the Complaint without prejudice. See 14 O’Brien v. Visa USA, Inc., 225 F. App’x 677, 678 (9th Cir. 2007) (affirming dismissal for 15 |/failure to prosecute where plaintiff “did not establish that he served process on any 16 defendant within” the time period prescribed in Rule 4(m)); Shakar R. v. Saul, No. 5:19- 17 || CV-01716 FMO (ADS), 2020 WL 2319877, at *1 (C.D. Cal. May 11, 2020) (dismissing 18 || for failure to file a proof of service or comply with an OSC requiring the same). 19 CONCLUSION AND ORDER 20 Accordingly, the Court DISMISSES WITHOUT PREJUDICE this civil action in 21 entirety based on Plaintiff's failure to prosecute pursuant to Fed. R. Civ. P. 41(b). The 22 || Court Clerk is directed to close this case. 23 || ITIS SO ORDERED. 24 /\ yy 25 || DATED: February 2, 2022 ( yi uA (Hiphan 6 26 United States District Judge 27 28