1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 9 DANIEL RIVERA ANAYA, Case No. 20-cv-01092-BAS-BGS 10 Reg. No. 93169298, ORDER DISMISSING ACTION 11 Plaintiff, FOR FAILURE TO PROSECUTE
12 v. 13 B. MUNOZ; DUSTIN R. WILLS; SMOUSE; GENO; K. KELLER, 14 Defendants. 15 16 On June 15, 2020, Plaintiff commenced this action against several U.S. Customs 17 and Border Protection agents for violations of his civil rights. (ECF No. 1.) Despite being 18 allowed to proceed with his case on July 14, 2020, Plaintiff has not updated his address 19 with the Court, demonstrated that service on Defendants has been completed, or otherwise 20 complied with the Court’s orders in this case. Accordingly, for the reasons discussed 21 below, the Court exercises its inherent authority to dismiss Plaintiff’s action. 22 I. BACKGROUND 23 As part of its July 14, 2020 Screening Order, the Court instructed Plaintiff to 24 complete the USM Form 285s with Defendants’ information and return them to the U.S. 25 Marshals, who were directed to complete service. (Screening Order at 7–8, ECF No. 5.) 26 A summons was issued the following day on July 14, 2020. (ECF No. 6.) 27 On November 3, 2020, the Court issued an Order to Show Cause (“OSC”) why the 28 case should not be dismissed for failure to prosecute, as no executed summons had been 1 filed to show that service had been completed in the 90-day period established by Federal 2 Rule of Civil Procedure 4(m). (ECF No. 7.) Plaintiff was required to show cause by 3 November 13, 2020 and “warned that failure to timely file a response to this OSC will 4 result in the Court dismissing this action.” (OSC at 2–3.) 5 The same day, Plaintiff filed a Motion to Schedule a Pre-Trial Conference. (ECF 6 No. 9.) The Magistrate Judge issued a Notice of Document Discrepancies (ECF No. 8) 7 and an order denying the Motion, noting that no Defendants had appeared and there was 8 no record that they had been served. (ECF No. 10.) 9 The OSC and the two orders issued by the Magistrate Judge were sent to Plaintiff 10 at his address of record.1 However, the orders sent to this address were all returned as 11 undeliverable. (ECF Nos. 11–13.) 12 Pro se litigants are required to keep the court and opposing parties apprised of their 13 current address. See CivLR 83.11(b). The rule specifically provides: 14 If mail directed to a pro se plaintiff by the clerk at the plaintiff’s last designated address is returned by the Post Office, and if such plaintiff fails to 15 notify the court and opposing parties within 60 days thereafter of the 16 plaintiff’s current address, the court may dismiss the action without prejudice for failure to prosecute. 17 18 Id. The OSC sent to Plaintiff’s designated address was returned as undeliverable to this 19 Court on November 17, 2020. (ECF No. 12.) Thus, under Civil Local Rule 83.11(b), 20 Plaintiff had until January 18, 2021 to advise the Court of his updated address. As of the 21 date of this Order, Plaintiff has not done so. Consequently, he has also failed to timely 22 respond to the Court’s OSC regarding service. 23 24
25 1 Plaintiff at no time filed a Notice of Change of Address with the Court. However, the Court also sent the orders to a Los Angeles address Plaintiff informally provided to the clerk’s office and an 26 address for an Arizona detention center from which he appeared to send his Motion. The orders sent to Plaintiff’s Los Angeles address were returned as undeliverable. (ECF Nos. 14–16.) The orders mailed 27 to the third address have not been returned, but Plaintiff has not filed a response to the OSC or an executed summons, or otherwise contacted the Court to acknowledge receipt and his intention to further prosecute 28 1 II. LEGAL STANDARD 2 “District courts have the inherent power to control their dockets and, ‘[i]n the 3 exercise of that power, they may impose sanctions including, where appropriate . . . 4 dismissal of a case.’” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (quoting 5 Thompson v. Hous. Auth. of L.A., 782 F.2d 829, 831 (9th Cir.), cert. denied, 475 U.S. 829 6 (1986); accord Link v. Wabash, R.R. Co., 370 U.S. 626, 630–31 (1962) (holding courts 7 are vested with an inherent power “to manage their own affairs so as to achieve the orderly 8 and expeditious disposition of cases.”) Although due process generally requires that the 9 party have notice and the opportunity to be heard before dismissal, when a party may be 10 said to have knowledge of the consequences of his failure to act, the court may dispense 11 with the necessity for advance notice and a hearing. Link, 370 U.S. at 630–32. 12 “Despite this authority, dismissal is a harsh penalty and, therefore, it should only 13 be imposed in extreme circumstances.” Ferdik, 963 F.2d at 1260. Therefore, to determine 14 whether dismissal under its inherent authority is appropriate, “the district court must 15 weigh five factors, including: (1) the public’s interest in expeditious resolution of 16 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 17 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 18 availability of less drastic alternatives.” Id. at 1260–61 (internal quotations omitted). 19 Generally, these five factors weigh in favor of sua sponte dismissal where a plaintiff has 20 failed to prosecute a case or comply with an order of the court. See Eldridge v. Block, 832 21 F.2d 1132, 1136 (9th Cir. 1987); Hells Canyon Preservation Council v. U.S. Forest Serv., 22 403 F.3d 683, 689 (9th Cir. 2005). Further, “[f]ailure to follow a district court’s local 23 rules is a proper ground for dismissal.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). 24 III. ANALYSIS 25 After weighing the five factors below, the Court finds that dismissal of this action 26 is warranted because Plaintiff has not demonstrated compliance with this district’s Local 27 Rules, the service requirements under the Federal Rules of Civil Procedure, and this 28 Court’s OSC. 1 A. Public’s Interest In Expeditious Resolution 2 “[T]he public’s interest in expeditious resolution of litigation always favors 3 dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). In this case, 4 Plaintiff’s inaction has undermined expeditious resolution. First, this case has been 5 pending for over seven months without the appearance of an adverse party or any 6 demonstration by Plaintiff that the adverse party was properly served. Second, the Court’s 7 attempts to prompt Plaintiff to complete this step have been wholly impeded by Plaintiff’s 8 failure to update his address with the Court. The Court cannot await indefinitely 9 Plaintiff’s response to the Court’s directive to file a proof of service or his compliance 10 with the Local Rule requiring him to update his address. Thus, the Court finds that this 11 factor weighs in favor of dismissal. 12 B. Court’s Need to Manage its Docket 13 A district court is in the best position to determine whether the delay in a particular 14 case interferes with docket management and the public interest. Ash v. Cuetkov, 739 F.2d 15 493, 496 (9th Cir. 1984).
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 9 DANIEL RIVERA ANAYA, Case No. 20-cv-01092-BAS-BGS 10 Reg. No. 93169298, ORDER DISMISSING ACTION 11 Plaintiff, FOR FAILURE TO PROSECUTE
12 v. 13 B. MUNOZ; DUSTIN R. WILLS; SMOUSE; GENO; K. KELLER, 14 Defendants. 15 16 On June 15, 2020, Plaintiff commenced this action against several U.S. Customs 17 and Border Protection agents for violations of his civil rights. (ECF No. 1.) Despite being 18 allowed to proceed with his case on July 14, 2020, Plaintiff has not updated his address 19 with the Court, demonstrated that service on Defendants has been completed, or otherwise 20 complied with the Court’s orders in this case. Accordingly, for the reasons discussed 21 below, the Court exercises its inherent authority to dismiss Plaintiff’s action. 22 I. BACKGROUND 23 As part of its July 14, 2020 Screening Order, the Court instructed Plaintiff to 24 complete the USM Form 285s with Defendants’ information and return them to the U.S. 25 Marshals, who were directed to complete service. (Screening Order at 7–8, ECF No. 5.) 26 A summons was issued the following day on July 14, 2020. (ECF No. 6.) 27 On November 3, 2020, the Court issued an Order to Show Cause (“OSC”) why the 28 case should not be dismissed for failure to prosecute, as no executed summons had been 1 filed to show that service had been completed in the 90-day period established by Federal 2 Rule of Civil Procedure 4(m). (ECF No. 7.) Plaintiff was required to show cause by 3 November 13, 2020 and “warned that failure to timely file a response to this OSC will 4 result in the Court dismissing this action.” (OSC at 2–3.) 5 The same day, Plaintiff filed a Motion to Schedule a Pre-Trial Conference. (ECF 6 No. 9.) The Magistrate Judge issued a Notice of Document Discrepancies (ECF No. 8) 7 and an order denying the Motion, noting that no Defendants had appeared and there was 8 no record that they had been served. (ECF No. 10.) 9 The OSC and the two orders issued by the Magistrate Judge were sent to Plaintiff 10 at his address of record.1 However, the orders sent to this address were all returned as 11 undeliverable. (ECF Nos. 11–13.) 12 Pro se litigants are required to keep the court and opposing parties apprised of their 13 current address. See CivLR 83.11(b). The rule specifically provides: 14 If mail directed to a pro se plaintiff by the clerk at the plaintiff’s last designated address is returned by the Post Office, and if such plaintiff fails to 15 notify the court and opposing parties within 60 days thereafter of the 16 plaintiff’s current address, the court may dismiss the action without prejudice for failure to prosecute. 17 18 Id. The OSC sent to Plaintiff’s designated address was returned as undeliverable to this 19 Court on November 17, 2020. (ECF No. 12.) Thus, under Civil Local Rule 83.11(b), 20 Plaintiff had until January 18, 2021 to advise the Court of his updated address. As of the 21 date of this Order, Plaintiff has not done so. Consequently, he has also failed to timely 22 respond to the Court’s OSC regarding service. 23 24
25 1 Plaintiff at no time filed a Notice of Change of Address with the Court. However, the Court also sent the orders to a Los Angeles address Plaintiff informally provided to the clerk’s office and an 26 address for an Arizona detention center from which he appeared to send his Motion. The orders sent to Plaintiff’s Los Angeles address were returned as undeliverable. (ECF Nos. 14–16.) The orders mailed 27 to the third address have not been returned, but Plaintiff has not filed a response to the OSC or an executed summons, or otherwise contacted the Court to acknowledge receipt and his intention to further prosecute 28 1 II. LEGAL STANDARD 2 “District courts have the inherent power to control their dockets and, ‘[i]n the 3 exercise of that power, they may impose sanctions including, where appropriate . . . 4 dismissal of a case.’” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (quoting 5 Thompson v. Hous. Auth. of L.A., 782 F.2d 829, 831 (9th Cir.), cert. denied, 475 U.S. 829 6 (1986); accord Link v. Wabash, R.R. Co., 370 U.S. 626, 630–31 (1962) (holding courts 7 are vested with an inherent power “to manage their own affairs so as to achieve the orderly 8 and expeditious disposition of cases.”) Although due process generally requires that the 9 party have notice and the opportunity to be heard before dismissal, when a party may be 10 said to have knowledge of the consequences of his failure to act, the court may dispense 11 with the necessity for advance notice and a hearing. Link, 370 U.S. at 630–32. 12 “Despite this authority, dismissal is a harsh penalty and, therefore, it should only 13 be imposed in extreme circumstances.” Ferdik, 963 F.2d at 1260. Therefore, to determine 14 whether dismissal under its inherent authority is appropriate, “the district court must 15 weigh five factors, including: (1) the public’s interest in expeditious resolution of 16 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 17 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 18 availability of less drastic alternatives.” Id. at 1260–61 (internal quotations omitted). 19 Generally, these five factors weigh in favor of sua sponte dismissal where a plaintiff has 20 failed to prosecute a case or comply with an order of the court. See Eldridge v. Block, 832 21 F.2d 1132, 1136 (9th Cir. 1987); Hells Canyon Preservation Council v. U.S. Forest Serv., 22 403 F.3d 683, 689 (9th Cir. 2005). Further, “[f]ailure to follow a district court’s local 23 rules is a proper ground for dismissal.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). 24 III. ANALYSIS 25 After weighing the five factors below, the Court finds that dismissal of this action 26 is warranted because Plaintiff has not demonstrated compliance with this district’s Local 27 Rules, the service requirements under the Federal Rules of Civil Procedure, and this 28 Court’s OSC. 1 A. Public’s Interest In Expeditious Resolution 2 “[T]he public’s interest in expeditious resolution of litigation always favors 3 dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). In this case, 4 Plaintiff’s inaction has undermined expeditious resolution. First, this case has been 5 pending for over seven months without the appearance of an adverse party or any 6 demonstration by Plaintiff that the adverse party was properly served. Second, the Court’s 7 attempts to prompt Plaintiff to complete this step have been wholly impeded by Plaintiff’s 8 failure to update his address with the Court. The Court cannot await indefinitely 9 Plaintiff’s response to the Court’s directive to file a proof of service or his compliance 10 with the Local Rule requiring him to update his address. Thus, the Court finds that this 11 factor weighs in favor of dismissal. 12 B. Court’s Need to Manage its Docket 13 A district court is in the best position to determine whether the delay in a particular 14 case interferes with docket management and the public interest. Ash v. Cuetkov, 739 F.2d 15 493, 496 (9th Cir. 1984). 16 In this case, Plaintiff has not shown that the adverse parties have been notified of 17 the action against them. The Court nonetheless provided Plaintiff with another 18 opportunity, outside the 90-day time limit, to complete service. However, because 19 Plaintiff has not kept the Court apprised of his address, the Court has been unable to 20 communicate this to him. Plaintiff’s failure to complete these fundamental steps has 21 resulted in continued delays in the prosecution of this case and has “impermissibly 22 allowed [P]laintiff to control the pace of the docket rather than the [C]ourt.” See Smith v. 23 Cty. Of Riverside Sheriff Dep’t, No. ED CV 17-1969 DSF (SP), 2019 WL 7865170, at *3 24 (C.D. Cal. Nov. 18, 2019) (citing Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) 25 (“It is incumbent upon the Court to manage its docket without being subject to routine 26 noncompliance of litigants.”)). Consequently, this factor also weighs in favor of 27 dismissal. 28 1 C. Prejudice to the Defendants 2 “To prove prejudice, a defendant must establish that plaintiff’s actions impaired 3 defendant’s ability to proceed to trial or threatened to interfere with the rightful decision 4 of the case.” Pagtalunan, 291 F.3d at 642 (citing Malone v. U.S. Postal Serv., 833 F.2d 5 128, 131 (9th Cir. 1987)). “[T]he pendency of the lawsuit is not sufficiently prejudicial 6 itself to warrant dismissal.” Yourish, 191 F.3d at 991; accord Ash, 739 F.2d at 496. 7 However, “even in the absence of a showing of actual prejudice to the defendant,” 8 prejudice is presumed from unreasonable delay. In re Eisen, 31 F.3d 1447, 1452–53 (9th 9 Cir. 1994); see also Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976) (“The law 10 presumes injury from unreasonable delay.”). 11 “Whether prejudice is sufficient to support an order of dismissal is in part judged 12 with reference to the strength of the plaintiff’s excuse for the default.” Malone, 833 F.2d 13 at 131. However, because the Court does not have Plaintiff’s updated mailing address, 14 Plaintiff’s reasons for failing to prosecute the action are unknown. See Garcia v. Fed. 15 Bureau of Prisons, No. 5:19-CF-00008-PSG-MAA, 2019 WL 6040412, at *4 (C.D. Cal. 16 Oct. 21, 2019), report and recommendation adopted, No. 5:19-CF-00008-PSG-MAA, 17 2019 WL 6039943 (C.D. Cal. Nov. 12, 2019). Because the presumption of prejudice 18 arises from a plaintiff’s unexplained failure to prosecute, the third factor favors dismissal. 19 See id. at *4 (citing Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002)). 20 D. Public Policy 21 Public policy favors disposition of cases on the merits. Pagtalunan, 291 F.3d at 22 643. The Court recognizes that this factor weighs against dismissal. 23 E. Availability of Less Drastic Alternatives 24 This factor examines whether less drastic alternatives to dismissal are feasible given 25 the circumstances of the case. In re Eisen, 31 F.3d at 1455. “[A] district court’s warning 26 to a party that [its] failure to obey the court’s order will result in dismissal can satisfy the 27 ‘consideration of alternatives’ requirement.” Ferdik, 963 F.2d at 1262. 28 1 As stated above, the Court has made an effort to reach Plaintiff at all addresses of 2 || which it is aware. However, in light of Plaintiff’s failure to notify the Court about his new 3 || address, the Court finds that less drastic alternatives to dismissal are not available in these 4 circumstances. See Carey v. King, 856 F.2d 1439, 1441 (th Cir. 1988) (concluding that 5 ||there was no less drastic sanction available than dismissal where mail addressed to 6 || plaintiff was returned by the post office as undeliverable and plaintiff did not provide 7 || updated address to court). Additionally, the Court clearly warned Plaintiff that his failure 8 || to timely respond to the OSC would result in dismissal. (OSC at 2-3.) As such, this factor 9 || weighs in favor of dismissal. 10 On balance, four out of five factors weigh in favor of dismissal. Accordingly, the 11 |} Court exercises its inherent authority to dismiss Plaintiff's complaint without prejudice. 12 ||See O’Brien v. Visa USA, Inc., 225 F. App’x 677, 678 (9th Cir. 2007) (unpublished) 13 || (affirming dismissal for failure to prosecute where plaintiff “did not establish that he 14 || served process on any defendant within” the time period prescribed in Rule 4(m)); Shakar 15 || v. Saul, No. 5:19-01716 FMO (ADS), 2020 WL 2319877, at *1 (C.D. Cal. May 11, 16 || 2020) (dismissing for failure to file a proof of service or comply with an OSC requiring 17 ||the same); Turner v. Cortez, No. 1:11-CV-00884-BAM PC, 2012 WL 3132671, at *2 18 (E.D. Cal. July 31, 2012) (dismissing action because plaintiff did not notify the court of 19 change of address). 20 CONCLUSION AND ORDER 21 Accordingly, the Court DISMISSES WITHOUT PREJUDICE this civil action 22 || 1n its entirety based on Plaintiff's failure to prosecute pursuant to Fed. R. Civ. P. 41(b). 23 || The Court Clerk is directed to close this case. 24 IT IS SO ORDERED. 25 A .. 26 || DATED: February 2, 2021 Cif vu HA A Hohe WU ¢ 7 United States District Judge 28