1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RICARDO BANUELOS-VEYNA, Case No. 2:21-cv-00855-CAS-MAA 12 Petitioner, ORDER DISMISSING PETITION AND DISMISSING ACTION 13 v. WITHOUT PREJUDICE 14 THE PEOPLE OF THE STATE OF CALIFORNIA, 15 Respondent. 16 17 18 I. INTRODUCTION AND BACKGROUND 19 On January 26, 2021, the Court received and filed Petitioner Ricardo 20 Banuelos-Veyna’s (“Petitioner”) pro se Petition for Writ of Habeas Corpus by a 21 Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”). (Pet., ECF No. 22 1.) 23 On February 23, 2021, Respondent filed a Motion to Dismiss the Petition 24 (“Motion to Dismiss”). (Mot. to Dismiss, ECF No. 9.) By the terms of the Court’s 25 February 1, 2021 Order Requiring Response, Petitioner’s Opposition to the Motion 26 to Dismiss was due within thirty days after service of that Motion. (Order 27 Requiring Response, ECF No. 4, at 2.) 28 1 On April 13, 2021 the Court issued an Order to Show Cause regarding 2 Petitioner’s failure to file an Opposition to the Motion to Dismiss (“April 13 3 Order”). (April 13, 2021 Order, ECF No. 13.) The April 13 Order explicitly 4 advised Petitioner that “failure to file an Opposition to the Motion will be construed 5 as consent to the granting of the Motion and will result in a recommendation that 6 the lawsuit be dismissed.” (Id. at 2 (citing C.D. Cal. L.R. 7-12.)) The Court 7 further cautioned Petitioner that “failure to comply with this order will result in a 8 recommendation that the lawsuit be dismissed for failure to prosecute and/or failure 9 to comply with Court orders.” (Id. (citing C.D. Cal. L.R. 41-1.)) 10 To date, Petitioner has filed neither an Opposition to the Motion to Dismiss 11 nor any response to the April 13 Order. 12 II. ANALYSIS 13 A. Legal Standard 14 Central District of California Local Rule 7-12 provides in pertinent part: 15 The Court may decline to consider any memorandum or 16 other document not filed within the deadline set by order or 17 local rule. The failure to file any required document, or the 18 failure to file it within the deadline, may be deemed consent 19 to the granting or denial of the motion . . . . 20 C.D. Cal. L.R. 7-12; see also Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) 21 (affirming dismissal on the basis of an unopposed motion pursuant to local rule). 22 In addition, district courts may dismiss cases sua sponte for failure to 23 prosecute or for failure to comply with a court order under Federal Rule of Civil 24 Procedure 41(b). Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 25 689 (9th Cir. 2005); see also Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) 26 (holding that federal district courts have “inherent power” to dismiss cases sua 27 sponte for lack of prosecution). Unless the Court states otherwise, a dismissal under 28 Rule 41(b)—other than for lack of jurisdiction, improper venue, or failure to join a 1 party—operates as an adjudication on the merits. See Fed. R. Civ. P. 41(b). 2 Dismissal, however, “is a harsh penalty and is to be imposed only in extreme 3 circumstances.” Allen v. Bayer Corp. (In re: Phenylpropanolamine (PPA) Prods. 4 Liab. Litig.), 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal 5 Serv., 833 F.2d 128, 130 (9th Cir. 1987)). “A Rule 41(b) dismissal must be 6 supported by a showing of unreasonable delay.” Omstead v. Dell, 594 F.3d 1081, 7 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 8 1986)) (internal quotation marks omitted). 9 Before dismissing an action for failure to follow a local rule, failure to 10 prosecute, or failure to comply with a court order, a district court must weigh five 11 factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 12 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the 13 public policy favoring disposition of cases of their merits; and (5) the availability of 14 less drastic sanctions.” Ghazali, 46 F.3d at 53–54 (quoting Henderson v. Duncan, 15 779 F.2d 1421, 1423 (9th Cir. 1986)) (failure to follow a local rule); see also 16 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (failure to prosecute or 17 failure to comply with a court order). The Ninth Circuit will “affirm a dismissal 18 where at least four factors support dismissal, or where at least three factors strongly 19 support dismissal.” Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011) 20 (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). 21 B. The Factors Support Dismissal. 22 1. The Public’s Interest in Expeditious Resolution and the Court’s 23 Need to Manage its Docket 24 The first and second factors (the public’s interest in expeditious resolution of 25 litigation and the Court’s need to manage its docket)1 weigh in favor of dismissal. 26 27 1 Courts usually review the first factor in conjunction with the second factor. See 28 Prods. Liab. Litig., 460 F.3d at 1227; Moneymaker v. CoBen (In re Eisen), 31 F.3d 1 “Orderly and expeditious resolution of disputes is of great importance to the rule of 2 law.” Prods. Liab. Litig., 460 F.3d at 1227. Thus, “[t]he public’s interest in 3 expeditious resolution of litigation always favors dismissal.” Pagtalunan, 291 F.3d 4 at 642 (quoting Yourish, 191 F.3d at 990). In addition, district courts “have an 5 inherent power to control their dockets,” Prods. Liab. Litig., 460 F.3d at 1227 6 (quoting Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th 7 Cir. 1986)), and “are best suited to determine when delay in a particular case 8 interferes with docket management and the public interest.” Yourish, 191 F.3d at 9 990 (quoting Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)). 10 To date, Petitioner has not filed an Opposition to the Motion to Dismiss or a 11 Response to the Court’s April 13 Order. The Court deems Petitioner’s failure to file 12 a timely Opposition consent to the granting of the Motion. See C.D. Cal. L.R. 7-12. 13 The Court also concludes that Petitioner’s failure to file an Opposition to the Motion 14 to Dismiss, failure to follow local rules, failure to comply with Court orders, and 15 failure to prosecute the lawsuit constitute unreasonable delay. See Thomas v. 16 Maricopa Cty. Jail, 265 Fed. App’x 606, 607 (9th Cir. 2008) (Mem.) (holding that 17 district court did not abuse its discretion by dismissing pro se prisoner lawsuit for 18 failure to respond to a court order for almost three months).
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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RICARDO BANUELOS-VEYNA, Case No. 2:21-cv-00855-CAS-MAA 12 Petitioner, ORDER DISMISSING PETITION AND DISMISSING ACTION 13 v. WITHOUT PREJUDICE 14 THE PEOPLE OF THE STATE OF CALIFORNIA, 15 Respondent. 16 17 18 I. INTRODUCTION AND BACKGROUND 19 On January 26, 2021, the Court received and filed Petitioner Ricardo 20 Banuelos-Veyna’s (“Petitioner”) pro se Petition for Writ of Habeas Corpus by a 21 Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”). (Pet., ECF No. 22 1.) 23 On February 23, 2021, Respondent filed a Motion to Dismiss the Petition 24 (“Motion to Dismiss”). (Mot. to Dismiss, ECF No. 9.) By the terms of the Court’s 25 February 1, 2021 Order Requiring Response, Petitioner’s Opposition to the Motion 26 to Dismiss was due within thirty days after service of that Motion. (Order 27 Requiring Response, ECF No. 4, at 2.) 28 1 On April 13, 2021 the Court issued an Order to Show Cause regarding 2 Petitioner’s failure to file an Opposition to the Motion to Dismiss (“April 13 3 Order”). (April 13, 2021 Order, ECF No. 13.) The April 13 Order explicitly 4 advised Petitioner that “failure to file an Opposition to the Motion will be construed 5 as consent to the granting of the Motion and will result in a recommendation that 6 the lawsuit be dismissed.” (Id. at 2 (citing C.D. Cal. L.R. 7-12.)) The Court 7 further cautioned Petitioner that “failure to comply with this order will result in a 8 recommendation that the lawsuit be dismissed for failure to prosecute and/or failure 9 to comply with Court orders.” (Id. (citing C.D. Cal. L.R. 41-1.)) 10 To date, Petitioner has filed neither an Opposition to the Motion to Dismiss 11 nor any response to the April 13 Order. 12 II. ANALYSIS 13 A. Legal Standard 14 Central District of California Local Rule 7-12 provides in pertinent part: 15 The Court may decline to consider any memorandum or 16 other document not filed within the deadline set by order or 17 local rule. The failure to file any required document, or the 18 failure to file it within the deadline, may be deemed consent 19 to the granting or denial of the motion . . . . 20 C.D. Cal. L.R. 7-12; see also Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) 21 (affirming dismissal on the basis of an unopposed motion pursuant to local rule). 22 In addition, district courts may dismiss cases sua sponte for failure to 23 prosecute or for failure to comply with a court order under Federal Rule of Civil 24 Procedure 41(b). Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 25 689 (9th Cir. 2005); see also Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) 26 (holding that federal district courts have “inherent power” to dismiss cases sua 27 sponte for lack of prosecution). Unless the Court states otherwise, a dismissal under 28 Rule 41(b)—other than for lack of jurisdiction, improper venue, or failure to join a 1 party—operates as an adjudication on the merits. See Fed. R. Civ. P. 41(b). 2 Dismissal, however, “is a harsh penalty and is to be imposed only in extreme 3 circumstances.” Allen v. Bayer Corp. (In re: Phenylpropanolamine (PPA) Prods. 4 Liab. Litig.), 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal 5 Serv., 833 F.2d 128, 130 (9th Cir. 1987)). “A Rule 41(b) dismissal must be 6 supported by a showing of unreasonable delay.” Omstead v. Dell, 594 F.3d 1081, 7 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 8 1986)) (internal quotation marks omitted). 9 Before dismissing an action for failure to follow a local rule, failure to 10 prosecute, or failure to comply with a court order, a district court must weigh five 11 factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 12 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the 13 public policy favoring disposition of cases of their merits; and (5) the availability of 14 less drastic sanctions.” Ghazali, 46 F.3d at 53–54 (quoting Henderson v. Duncan, 15 779 F.2d 1421, 1423 (9th Cir. 1986)) (failure to follow a local rule); see also 16 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (failure to prosecute or 17 failure to comply with a court order). The Ninth Circuit will “affirm a dismissal 18 where at least four factors support dismissal, or where at least three factors strongly 19 support dismissal.” Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011) 20 (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). 21 B. The Factors Support Dismissal. 22 1. The Public’s Interest in Expeditious Resolution and the Court’s 23 Need to Manage its Docket 24 The first and second factors (the public’s interest in expeditious resolution of 25 litigation and the Court’s need to manage its docket)1 weigh in favor of dismissal. 26 27 1 Courts usually review the first factor in conjunction with the second factor. See 28 Prods. Liab. Litig., 460 F.3d at 1227; Moneymaker v. CoBen (In re Eisen), 31 F.3d 1 “Orderly and expeditious resolution of disputes is of great importance to the rule of 2 law.” Prods. Liab. Litig., 460 F.3d at 1227. Thus, “[t]he public’s interest in 3 expeditious resolution of litigation always favors dismissal.” Pagtalunan, 291 F.3d 4 at 642 (quoting Yourish, 191 F.3d at 990). In addition, district courts “have an 5 inherent power to control their dockets,” Prods. Liab. Litig., 460 F.3d at 1227 6 (quoting Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th 7 Cir. 1986)), and “are best suited to determine when delay in a particular case 8 interferes with docket management and the public interest.” Yourish, 191 F.3d at 9 990 (quoting Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)). 10 To date, Petitioner has not filed an Opposition to the Motion to Dismiss or a 11 Response to the Court’s April 13 Order. The Court deems Petitioner’s failure to file 12 a timely Opposition consent to the granting of the Motion. See C.D. Cal. L.R. 7-12. 13 The Court also concludes that Petitioner’s failure to file an Opposition to the Motion 14 to Dismiss, failure to follow local rules, failure to comply with Court orders, and 15 failure to prosecute the lawsuit constitute unreasonable delay. See Thomas v. 16 Maricopa Cty. Jail, 265 Fed. App’x 606, 607 (9th Cir. 2008) (Mem.) (holding that 17 district court did not abuse its discretion by dismissing pro se prisoner lawsuit for 18 failure to respond to a court order for almost three months). Petitioner’s 19 noncompliance and inaction also interfere with the public’s interest in the 20 expeditious resolution of this litigation and hinder the Court’s ability to manage its 21 docket. See Prods. Liab. Litig., 460 F.3d at 1227 (“[The Ninth Circuit] defer[s] to 22 the district court’s judgment about when a delay becomes unreasonable ‘because it is 23 in the best position to determine what period of delay can be endured before its 24 docket becomes unmanageable.’” (quoting Moneymaker v. CoBen (In re Eisen), 31 25 F.3d 1447, 1451 (9th Cir. 1994))). For these reasons, the first and second factors 26 favor dismissal. 27 1447, 1452 (9th Cir. 1994) (The first two factors are usually reviewed together “to 28 determine if there is an unreasonable delay.”). 1 2. Risk of Prejudice to Respondent 2 The third factor also supports dismissal without prejudice. The risk of 3 prejudice to a respondent is related to a petitioner’s reason for failure to prosecute an 4 action. See Pagtalunan, 291 F.3d at 642. As Petitioner has not responded to the 5 Court’s April 13 Order, he has offered no reason for failing to file an Opposition to 6 the Motion. The absence of any reason indicates sufficient prejudice to Respondent. 7 See Yourish, 191 F.3d at 991–92 (holding that a paltry excuse for default indicates 8 sufficient prejudice to the defendants); see also Laurino v. Syringa Gen. Hosp., 279 9 F.3d 750, 753 (9th Cir. 2002) (holding that “a presumption of prejudice arises from a 10 plaintiff’s unexplained failure to prosecute”). 11 3. Availability of Less Drastic Alternatives 12 The fourth factor also supports dismissal without prejudice. “Warning that 13 failure to obey a court order will result in dismissal can itself meet the 14 ‘consideration of alternatives’ requirement.” Prods. Liab. Litig., 460 F.3d at 1229 15 (citing, inter alia, Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1991) 16 (“Moreover, our decisions also suggest that a district court’s warning to a party 17 that his failure to obey the court’s order will result in dismissal can satisfy the 18 ‘consideration of alternatives’ requirement.”)). In its April 13 Order, the Court 19 warned Petitioner that the Petition would be dismissed if he did not respond to the 20 Order or file an Opposition by May 13, 2021. (April 13, 2021 Order 1–2.) 21 Despite being afforded thirty days to comply, Petitioner failed to respond to the 22 Order. 23 4. Public Policy Favoring Disposition of Cases on Their Merits 24 The fifth factor weighs against dismissal. “We have often said that the 25 public policy favoring disposition of cases on their merits strongly counsels 26 against dismissal.” Prods. Liab. Litig., 460 F.3d at 1228 (citing Hernandez, 138 27 F.3d at 399). On the other hand, “this factor ‘lends little support’ to a party whose 28 responsibility it is to move a case toward disposition on the merits but whose 1 conduct impedes progress in that direction.” Id. (citations omitted). Thus, this 2 factor alone does not preclude dismissal. 3 C. Dismissal of this Action is Appropriate. 4 As discussed above, Petitioner’s failure to file an Opposition to the Motion, 5 failure to comply with local rules, failure to comply with Court orders, and failure to 6 prosecute this action constitute unreasonable delay. In addition, four of the 7 dismissal factors weigh in favor of dismissal, whereas only one factor weighs 8 against dismissal. “While the public policy favoring disposition of cases on their 9 merits weighs against [dismissal], that single factor is not enough to preclude 10 imposition of this sanction when the other four factors weigh in its favor.” Rio 11 Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). 12 The Court concludes that dismissal of this action for failure to file an 13 Opposition to the Motion, failure to comply with local rules, failure to comply with 14 Court orders, and failure to prosecute is warranted. However, consistent with Rule 15 41(b) and this Court’s exercise of its discretion, the dismissal should be without 16 prejudice. 17 III. CONCLUSION 18 Accordingly, IT IS HEREBY ORDERED that (1) the Petition is DISMISSED 19 for failure to comply with a local rule, failure to comply with a court order, and 20 failure to prosecute, (2) Respondent’s Motion to Dismiss is GRANTED, and (3) the 21 Clerk is directed to enter judgment dismissing this action without prejudice. 22 IV. CERTIFICATE OF APPEALABILITY 23 Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the 24 United States District Courts, the Court “must issue or deny a certificate of 25 appealability when it enters a final order adverse to the applicant.” The Court has 26 considered whether a certificate of appealability is warranted. See 28 U.S.C. 27 § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484–85 (2000). The Court 28 / / / 1 || concludes that a certificate of appealability is not warranted; thus, a certificate of 2 || appealability is DENIED. 3 4 || DATED: June 4, 2021 AM jus ff by □□ 5 6 CHRISTINA A. SNYDER 7 UNITED STATES DISTRICT JUDGE 8 9 || Presented by: 10
| MARIA A“AUDERO OO 13 | UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28