Justin v. Real Option for City Kids

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MALIK M. JUSTIN, Case No. 24-cv-03387-AMO

8 Plaintiff, ORDER OF DISMISSAL v. 9

10 REAL OPTION FOR CITY KIDS, et al., Defendants. 11

12 13 Plaintiff commenced this action on June 5, 2024. ECF 1. On July 16, 2024, after the case 14 was reassigned to the undersigned, the Court issued an Order to Show Cause instructing Plaintiff 15 to explain why the case should not be dismissed for failure to prosecute the case and to comply 16 with court orders. ECF 8. Plaintiff’s response was due July 31, 2024. Id. No response was filed. 17 Federal Rule of Civil Procedure 41(b) permits the involuntary dismissal of an action or 18 claim for a plaintiff’s failure to prosecute. See Link v. Wabash R. Co., 370 U.S. 626, 630-31 19 (1962) (“authority of a court to dismiss sua sponte for lack of prosecution has generally been 20 considered an ‘inherent power’”). Before dismissing for failure to prosecute, the Court must 21 weigh several factors including: (1) the public’s interest in expeditious resolution of litigation; 22 (2) the court's need to manage its docket; (3) the risk of prejudice to defendants; (4) the 23 availability of less drastic sanctions; and (5) the public policy favoring the disposition of cases on 24 their merits. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Dismissal is 25 warranted under Rule 41(b) “where at least four [of the five] factors support dismissal, . . . or 26 where at least three factors ‘strongly’ support dismissal.” Yourish v. California Amplifier, 191 27 F.3d 983, 990 (9th Cir. 1999) (citation omitted). 1 First, the public’s interest in expeditious resolution of litigation always favors dismissal for 2 failure to prosecute. See Yourish, 191 F.3d at 990. 3 Second, the Court’s need to manage its docket supports dismissal. Pagtalunan, 291 F.3d 4 at 642. This case appears redundant in light of the several other cases Justin filed against the same 5 Defendants with similar allegations. See, e.g., Justin v. Real Options for City Kids et al., N.D. 6 Cal. Case No. 24-cv-03309-AMO. Moreover, Plaintiff has taken no action in relation to this case 7 since it was initially filed. 8 The third factor the Court considers is “the risk of prejudice to defendants/respondents.” 9 Pagtalunan, 291 F.3d at 642. “Delay in serving a complaint is a particularly serious failure to 10 prosecute because it affects all the defendant’s preparations.” Anderson v. Air West, Inc., 542 F.2d 11 522, 525 (9th Cir. 1976) (citation omitted). Therefore, “[u]nreasonable delay is the foundation 12 upon which a court may presume prejudice.” Sw. Marine Inc. v. Danzig, 217 F.3d 1128, 1138 13 (9th Cir. 2000); see also In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994) (citing Anderson, 542 14 F.2d at 524). “However, this presumption of prejudice is a rebuttable one and if there is a showing 15 that no actual prejudice occurred, that factor should be considered when determining whether the 16 trial court exercised sound discretion.” Eisen, 31 F.3d at 1452-53 (quoting Anderson, 542 F.2d at 17 524). Here, Plaintiff has not responded to the Court’s order and thus fails to rebut the presumption 18 of prejudice to the still unserved defendants. Accordingly, this factor also weighs in favor of 19 dismissal. 20 The fourth factor the Court considers is “the availability of less drastic alternatives.” 21 Pagtalunan, 291 F.3d at 642. Examples of less drastic alternatives include a warning, formal 22 reprimand, fine, or imposition of costs or attorney’s fees. See Malone, 833 F.2d at 132 n.1. The 23 Court has considered less drastic sanctions and already issued a warning to Plaintiff that he faced 24 the risk of dismissal. See Olivia v. Sullivan, 958 F.2d 272, 273-74 (9th Cir. 1992) (finding these 25 two factors “decisive” where a Court sua sponte dismisses for failure to prosecute). In light of the 26 warning provided, as well as the chance to avoid dismissal, no less-drastic alternative remains 27 available to the Court. See ECF 8; cf. Pagtalunan, 291 F.3d at 643 (finding that a warning did not 1 order). 2 The fifth and final factor the Court considers is “the public policy favoring disposition of 3 cases on their merits.” Pagtalunan, 291 F.3d at 642. While the public policy “favoring disposition 4 || of cases on their merits strongly counsels against dismissal,” “this factor ‘lends little support’ to a 5 party whose responsibility it is to move a case toward disposition on the merits but whose conduct 6 || impedes progress in that direction.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 7 F.3d 1217, 1228 (9th Cir. 2006); see also Moore v. Jaime, 2022 WL 326642, at *4 (C.D. Cal. Feb. 8 3, 2022); Vyas v. Vyas, 2017 WL 3600383, at *6 (C.D. Cal. Aug. 18, 2017). Here, Plaintiff has 9 not acted to remedy the defects in his application to proceed in forma pauperis, and he has not 10 || responded to any court order since the filing of this case. Such conduct impedes progress of the 11 case. Therefore, the public policy favoring disposition on the merits factor neither weighs in favor 12 of or against dismissal. See Phenylpropanolamine, 460 F.3d at 1234. 13 In summary, dismissal pursuant to Federal Rule of Civil Procedure 41(b) is warranted here 14 because at least four factors favor dismissal. Accordingly, this action is DISMISSED, without 3 15 prejudice, for Plaintiff's failure to prosecute. The Clerk shall close the file. a 16 IT IS SO ORDERED. 3 17 Dated: August 6, 2024

□□ 19 : ARACELI MARTINEZ-OLGUIN 20 United States District Judge 21 22 23 24 25 26 27 28