1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ERIC RENE ORTIZ, ) Case No. 5:24-cv-02605-SP ) 12 Plaintiff, ) ) MEMORANDUM OPINION AND 13 v. ) ORDER DISMISSING ACTION ) FOR FAILURE TO PROSECUTE 14 ) CRST EXPEDITED, INC., et al., ) 15 ) Defendants. ) 16 ) ) 17 18 I. 19 PROCEEDINGS 20 On December 6, 2024, defendant CRST Expedited, Inc. removed this action 21 alleging employment discrimination and wage and hour violations to this court. 22 On February 7, 2025, following a scheduling conference, the court issued its Civil 23 Trial Scheduling Order in this matter, which set forth various deadlines leading up 24 to trial set for January 6, 2026. 25 On August 15, 2025, plaintiff’s counsel filed a motion to withdraw in which 26 counsel stated there had been a breakdown in the attorney-client relationship, with 27 plaintiff failing to respond to counsel’s attempts to communicate with plaintiff. 28 1 Plaintiff did not respond to counsel’s motion to withdraw. The court granted the 2 motion to withdraw on September 10, 2025, and gave plaintiff 30 days to either: 3 (1) retain counsel, with new counsel then ordered to file a notice of appearance by 4 October 10, 2025; or (2) file a notice by October 10, 2025 that plaintiff intends to 5 represent themself. Since plaintiff has no address of record with the court, the 6 court ordered plaintiff’s relieved counsel to serve a copy of the September 10 order 7 on plaintiff, and ordered plaintiff to provide the court with plaintiff’s contact 8 information in any notice of intent to represent themself. Finally, the September 9 10 order cautioned plaintiff that any failure by either new counsel for plaintiff or 10 plaintiff themself to file a notice of appearance by the October 10 deadline may 11 result in dismissal of this action for failure to prosecute. 12 On September 16, 2025, plaintiff’s former counsel filed proof of service of 13 the September 10 order on plaintiff. But neither plaintiff nor any new counsel for 14 plaintiff filed a notice of appearance by the October 10 deadline or since. 15 Accordingly, on October 31, 2025, the court issued an order to plaintiff to show 16 cause in writing not later than November 14, 2025 why this action should not be 17 dismissed for failure to prosecute (“OSC”). The court stated that plaintiff may 18 discharge the OSC by filing, not later than November 14, 2025, a notice of 19 appearance (by plaintiff pro se or by new counsel for plaintiff) as required by the 20 September 10 order. The court directed that the OSC be mailed to plaintiff at 21 plaintiff’s believed address, but cautioned plaintiff that further orders in the case 22 would only be mailed to the official addresses of record. Finally, the court warned 23 plaintiff that failure to respond to the OSC by November 14, 2025, or further 24 failure to prosecute this action in accordance with court orders, may result in 25 dismissal of this action for failure to prosecute. 26 Plaintiff did not respond in any fashion to the OSC. To this date, since 27 28 1 plaintiff’s former counsel withdrew, the court has received no communication from 2 plaintiff. 3 II. 4 DISCUSSION 5 It is well established that a district court may dismiss a plaintiff’s action for 6 failure to prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link 7 v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962) 8 (a court’s authority to dismiss for lack of prosecution is necessary to prevent undue 9 delays in the disposition of pending cases and to avoid congestion in the calendars 10 of the district courts); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (a 11 district court may dismiss an action for failure to comply with any order of the 12 court). But dismissal is a severe penalty and should be imposed only after 13 consideration of the relevant factors in favor of and against this extreme remedy. 14 Thompson v. Hous. Auth. of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam). 15 In determining whether to dismiss a case for failure to prosecute, a court 16 must weigh five factors: “(1) the public’s interest in expeditious resolution of 17 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 18 defendants; (4) the public policy favoring disposition of cases on their merits[;] 19 and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 20 1440 (9th Cir. 1988) (per curiam) (internal quotation marks and citation omitted). 21 In this case, both the first factor (public’s interest in expeditious resolution 22 of litigation) and the second factor (the court’s need to manage its docket) strongly 23 favor dismissal. In granting plaintiff’s counsel motion to withdraw on September 24 10, 2025, the court gave plaintiff 30 days to either (1) retain new counsel or (2) 25 give notice that plaintiff would be proceeding without counsel in the case and 26 provide the court with plaintiff’s address of record and other contact information. 27 Plaintiff failed to abide by the court’s September 10 order and did not either retain 28 1 new counsel or file notice plaintiff would be proceeding without counsel. Having 2 heard nothing from plaintiff – and lacking even a notice from plaintiff of his 3 contact information – the court gave plaintiff an additional chance by issuing the 4 OSC giving plaintiff until November 14, 2025 to file a notice of appearance of new 5 counsel or notice from plaintiff with plaintiff’s contact information stating plaintiff 6 would be proceeding pro se. To date, plaintiff has neither filed a notice of 7 appearance of new counsel or notice that plaintiff would be proceeding pro se, nor 8 has plaintiff responded in any other fashion to the OSC. In fact, since plaintiff’s 9 counsel withdrew almost three months ago, plaintiff has not communicated with 10 the court. Plaintiff’s conduct indicates he does not intend to prosecute this case 11 diligently, or at all. Plaintiff’s noncommunication and noncompliance with the 12 court’s orders have “caused [this] action to come to a complete halt, thereby 13 allowing plaintiff[] to control the pace of the docket rather than the Court.” 14 Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (internal quotation 15 marks and citation omitted). Allowing plaintiff to continue to do so would 16 frustrate the public’s interest in the expeditious resolution of litigation, as well as 17 the court’s need to manage its own docket. See id. 18 A rebuttable presumption of prejudice to defendants arises when a plaintiff 19 unreasonably delays prosecution of an action. See In re Eisen, 31 F.3d 1447, 20 1452-53 (9th Cir. 1994). Nothing suggests that such a presumption is unwarranted 21 here. Plaintiff has stopped communicating with the court in any fashion, and has 22 not abided by the court’s orders. See Yourish, 191 F.3d at 991-92 (“Plaintiff[’s] 23 paltry excuse for his default on the judge’s order indicates that there was sufficient 24 prejudice to Defendants from the delay . . . .”). Thus, the third factor also weighs 25 in favor of dismissal. 26 It is a plaintiff’s responsibility to move a case toward a disposition at a 27 reasonable pace and to avoid dilatory and evasive tactics. See Morris v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ERIC RENE ORTIZ, ) Case No. 5:24-cv-02605-SP ) 12 Plaintiff, ) ) MEMORANDUM OPINION AND 13 v. ) ORDER DISMISSING ACTION ) FOR FAILURE TO PROSECUTE 14 ) CRST EXPEDITED, INC., et al., ) 15 ) Defendants. ) 16 ) ) 17 18 I. 19 PROCEEDINGS 20 On December 6, 2024, defendant CRST Expedited, Inc. removed this action 21 alleging employment discrimination and wage and hour violations to this court. 22 On February 7, 2025, following a scheduling conference, the court issued its Civil 23 Trial Scheduling Order in this matter, which set forth various deadlines leading up 24 to trial set for January 6, 2026. 25 On August 15, 2025, plaintiff’s counsel filed a motion to withdraw in which 26 counsel stated there had been a breakdown in the attorney-client relationship, with 27 plaintiff failing to respond to counsel’s attempts to communicate with plaintiff. 28 1 Plaintiff did not respond to counsel’s motion to withdraw. The court granted the 2 motion to withdraw on September 10, 2025, and gave plaintiff 30 days to either: 3 (1) retain counsel, with new counsel then ordered to file a notice of appearance by 4 October 10, 2025; or (2) file a notice by October 10, 2025 that plaintiff intends to 5 represent themself. Since plaintiff has no address of record with the court, the 6 court ordered plaintiff’s relieved counsel to serve a copy of the September 10 order 7 on plaintiff, and ordered plaintiff to provide the court with plaintiff’s contact 8 information in any notice of intent to represent themself. Finally, the September 9 10 order cautioned plaintiff that any failure by either new counsel for plaintiff or 10 plaintiff themself to file a notice of appearance by the October 10 deadline may 11 result in dismissal of this action for failure to prosecute. 12 On September 16, 2025, plaintiff’s former counsel filed proof of service of 13 the September 10 order on plaintiff. But neither plaintiff nor any new counsel for 14 plaintiff filed a notice of appearance by the October 10 deadline or since. 15 Accordingly, on October 31, 2025, the court issued an order to plaintiff to show 16 cause in writing not later than November 14, 2025 why this action should not be 17 dismissed for failure to prosecute (“OSC”). The court stated that plaintiff may 18 discharge the OSC by filing, not later than November 14, 2025, a notice of 19 appearance (by plaintiff pro se or by new counsel for plaintiff) as required by the 20 September 10 order. The court directed that the OSC be mailed to plaintiff at 21 plaintiff’s believed address, but cautioned plaintiff that further orders in the case 22 would only be mailed to the official addresses of record. Finally, the court warned 23 plaintiff that failure to respond to the OSC by November 14, 2025, or further 24 failure to prosecute this action in accordance with court orders, may result in 25 dismissal of this action for failure to prosecute. 26 Plaintiff did not respond in any fashion to the OSC. To this date, since 27 28 1 plaintiff’s former counsel withdrew, the court has received no communication from 2 plaintiff. 3 II. 4 DISCUSSION 5 It is well established that a district court may dismiss a plaintiff’s action for 6 failure to prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link 7 v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962) 8 (a court’s authority to dismiss for lack of prosecution is necessary to prevent undue 9 delays in the disposition of pending cases and to avoid congestion in the calendars 10 of the district courts); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (a 11 district court may dismiss an action for failure to comply with any order of the 12 court). But dismissal is a severe penalty and should be imposed only after 13 consideration of the relevant factors in favor of and against this extreme remedy. 14 Thompson v. Hous. Auth. of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam). 15 In determining whether to dismiss a case for failure to prosecute, a court 16 must weigh five factors: “(1) the public’s interest in expeditious resolution of 17 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 18 defendants; (4) the public policy favoring disposition of cases on their merits[;] 19 and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 20 1440 (9th Cir. 1988) (per curiam) (internal quotation marks and citation omitted). 21 In this case, both the first factor (public’s interest in expeditious resolution 22 of litigation) and the second factor (the court’s need to manage its docket) strongly 23 favor dismissal. In granting plaintiff’s counsel motion to withdraw on September 24 10, 2025, the court gave plaintiff 30 days to either (1) retain new counsel or (2) 25 give notice that plaintiff would be proceeding without counsel in the case and 26 provide the court with plaintiff’s address of record and other contact information. 27 Plaintiff failed to abide by the court’s September 10 order and did not either retain 28 1 new counsel or file notice plaintiff would be proceeding without counsel. Having 2 heard nothing from plaintiff – and lacking even a notice from plaintiff of his 3 contact information – the court gave plaintiff an additional chance by issuing the 4 OSC giving plaintiff until November 14, 2025 to file a notice of appearance of new 5 counsel or notice from plaintiff with plaintiff’s contact information stating plaintiff 6 would be proceeding pro se. To date, plaintiff has neither filed a notice of 7 appearance of new counsel or notice that plaintiff would be proceeding pro se, nor 8 has plaintiff responded in any other fashion to the OSC. In fact, since plaintiff’s 9 counsel withdrew almost three months ago, plaintiff has not communicated with 10 the court. Plaintiff’s conduct indicates he does not intend to prosecute this case 11 diligently, or at all. Plaintiff’s noncommunication and noncompliance with the 12 court’s orders have “caused [this] action to come to a complete halt, thereby 13 allowing plaintiff[] to control the pace of the docket rather than the Court.” 14 Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (internal quotation 15 marks and citation omitted). Allowing plaintiff to continue to do so would 16 frustrate the public’s interest in the expeditious resolution of litigation, as well as 17 the court’s need to manage its own docket. See id. 18 A rebuttable presumption of prejudice to defendants arises when a plaintiff 19 unreasonably delays prosecution of an action. See In re Eisen, 31 F.3d 1447, 20 1452-53 (9th Cir. 1994). Nothing suggests that such a presumption is unwarranted 21 here. Plaintiff has stopped communicating with the court in any fashion, and has 22 not abided by the court’s orders. See Yourish, 191 F.3d at 991-92 (“Plaintiff[’s] 23 paltry excuse for his default on the judge’s order indicates that there was sufficient 24 prejudice to Defendants from the delay . . . .”). Thus, the third factor also weighs 25 in favor of dismissal. 26 It is a plaintiff’s responsibility to move a case toward a disposition at a 27 reasonable pace and to avoid dilatory and evasive tactics. See Morris v. Morgan 28 1 Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991). By failing to comply with the 2 court’s orders issued on September 10 and October 31, 2025, and by failing to 3 even notify the court how plaintiff may be reached, plaintiff has not discharged this 4 responsibility. In these circumstances, the public policy favoring resolution of 5 disputes on the merits does not outweigh plaintiff’s failure to move this case 6 toward a disposition at a reasonable pace. Thus, even weighing the fourth factor, 7 the balance still tilts in favor of dismissal. 8 The fifth factor, the availability and consideration of less drastic sanctions, 9 ordinarily counsels against dismissal. “Alternative sanctions include: a warning, a 10 formal reprimand, placing the case at the bottom of the calendar, a fine, the 11 imposition of costs or attorney fees, the temporary suspension of the culpable 12 counsel from practice before the court, . . . dismissal of the suit unless new counsel 13 is secured[,] . . . preclusion of claims or defenses, or the imposition of fees and 14 costs upon plaintiff’s counsel . . . .” Malone v. U.S. Postal Serv., 833 F.2d 128, 15 132 n.1 (9th Cir. 1987) (citation and internal quotation omitted). Warning the 16 petitioner that failure to obey a court order will result in dismissal “can itself 17 suffice to meet the ‘consideration of alternatives’ requirement.” Estrada v. Speno 18 & Cohen, 244 F.3d 1050, 1057 (9th Cir. 2001). 19 Here, the court attempted to avoid dismissal by: (1) cautioning plaintiff in its 20 September 10, 2025 order that failure to timely file a notice of appearance of new 21 counsel or intent to proceed pro se may result in dismissal of the action for failure 22 to prosecute; and (2) after plaintiff failed to respond by the October 10 deadline, 23 giving plaintiff another chance by issuing its October 31, 2025 OSC warning 24 plaintiff that failure to timely respond to the OSC may result in dismissal of this 25 action for failure to prosecute. Plaintiff has neither complied with nor responded 26 to either of the court’s orders. Nor has plaintiff otherwise communicated with the 27 court. The court notes that the instant action is being dismissed without prejudice, 28 1 || a significantly less drastic sanction than dismissal with prejudice. since there 2 || appears to be no less drastic sanction than dismissal without prejudice now 3 || available, the fifth factor weighs in favor of dismissal. 4 Based on the foregoing, the court finds that dismissal of this action is 5 || warranted for failure to prosecute. 6 TIT. 7 ORDER 8 IT IS THEREFORE ORDERED that this action is hereby dismissed without 9 || prejudice for failure to prosecute, and Judgment shall be entered accordingly. 10 11 | DATED: December 5, 2025 LRP SHERI PYM 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28