Marvin Louis Lowery, Jr. v. City of Los Angeles

Opinion

1 2 3 4 5 6 7 10 MARVIN LOUIS LOWERY, JR., ) Case No. CV 20-3373-ODW (JPR) 11 ) Plaintiff, ) 12 ) ORDER DISMISSING ACTION FOR v. ) FAILURE TO PROSECUTE AND DENYING 13 ) DEFENDANT’S MOTION TO DISMISS AS CITY OF LOS ANGELES et ) MOOT 14 al., ) ) 15 Defendants. ) 16 17 On April 10, 2020, Defendant City of Los Angeles removed 18 this civil-rights action to this Court and a week later moved to 19 dismiss it, arguing that Plaintiff had failed to state a claim. 20 On April 17, the previously assigned Magistrate Judge set a 21 briefing schedule on the motion, warning Plaintiff that if he 22 failed to oppose it it could be granted on that basis alone. 23 Plaintiff’s opposition to the motion was due May 17. He did not 24 file one or request an extension of time to do so. On May 14, 25 mail the Court had sent Plaintiff at his address of record was 26 returned as undeliverable, with the notation “Return to Sender.” 27 He has not filed a change of address, nor has he communicated 28 with the Court in any way since his lawsuit was removed here. 1 1 Local Rule 41-6 provides that 2 [a] party proceeding pro se shall keep the Court . . . 3 apprised of such party’s current address . . . . If mail 4 directed by the Clerk to a pro se plaintiff’s address of 5 record is returned undelivered by the Postal Service, and 6 if, within fifteen (15) days of the service date, such 7 plaintiff fails to notify, in writing, the Court and 8 opposing parties of said plaintiff’s current address, the 9 Court may dismiss the action with or without prejudice 10 for want of prosecution. 11 Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (per 12 curiam), examined when it is appropriate to dismiss a plaintiff’s 13 lawsuit for failure to prosecute. See also Link v. Wabash R.R. 14 Co., 370 U.S. 626, 629–30 (1962) (“The power to invoke 15 [dismissal] is necessary in order to prevent undue delays in the 16 disposition of pending cases and to avoid congestion in the 17 calendars of the District Courts.”). 18 In deciding whether to dismiss a lawsuit for failure to 19 prosecute, a court must consider “(1) the public’s interest in 20 expeditious resolution of litigation; (2) the court’s need to 21 manage its docket; (3) the risk of prejudice to the defendants; 22 (4) the public policy favoring disposition of cases on their 23 merits[;] and (5) the availability of less drastic sanctions.” 24 Carey, 856 F.2d at 1440 (citation omitted). Unreasonable delay 25 creates a rebuttable presumption of prejudice to the defendants 26 that can be overcome only with an affirmative showing of just 27 cause by the plaintiff. In re Eisen, 31 F.3d 1447, 1452-53 (9th 28 Cir. 1994). 2 1 Here, the first, second, third, and fifth Carey factors 2 militate in favor of dismissal. In particular, by failing to 3 inform the Court of his address change, Plaintiff has rendered it 4 unable to communicate with him. He has not rebutted the 5 presumption of prejudice to Defendants, and no less drastic 6 sanction is available. This is particularly so given that this 7 is not the first time Plaintiff has failed to keep the Court 8 updated on an address change. See Order Dismissing Action, 9 Lowery v. City of L.A., No. CV 18-9644-R (JPR) (C.D. Cal. May 10, 10 2019) (dismissing lawsuit for failure to prosecute based on 11 plaintiff’s failure to file change of address), ECF No. 17; Order 12 Dismissing Action, Lowery v. City of Beverly Hills, No. 20-2654- 13 ODW (JPR) (C.D. Cal. Apr. 30, 2020), ECF No. 13 (same); see also 14 Scott v. Belmares, 328 F. App’x 538, 539 (9th Cir. 2009) 15 (affirming dismissal of civil-rights lawsuit in part because pro 16 se plaintiff failed to keep court apprised of change of address 17 under Local Rule 41-6). Although the fourth Carey factor weighs 18 against dismissal — as it always does — together the other 19 factors outweigh the public’s interest in disposing of the case 20 on its merits. Indeed, because of Plaintiff’s repeated filing of 21 lawsuits that he does not prosecute, dismissal should be with 22 prejudice. 23 24 25 26 27 28 3 1 It therefore is ORDERED that this action is dismissed with 2 || prejudice under the Court’s inherent power to achieve the orderly 3 || and expeditious disposition of cases and because Plaintiff has 4] failed to prosecute it. Defendants’ motion to dismiss is DENIED 5 |} as moot. DATED: May 26, 2020 U.S. DISTRICT JUDGE 9 || Presented by: 10 fo Prenat Jean P. Rosenbluth ll Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28