Rivers v. City of American Canyon

N.D. California

Rivers v. City of American Canyon

District Court, N.D. California·Decided January 3, 2023·No. 3:22-cv-01576·Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KEITH RIVERS, Case No. 22-cv-01576-JSC

8 Plaintiff, ORDER OF DISMISSAL FOR 9 v. FAILURE TO PROSECUTE

10 AMERICAN CANYON POLICE Re: Dkt. No. 24 DEPARTMENT, et al., 11 Defendants.

12 13 Defendants were served with Plaintiff’s complaint on August 15, 2022 and answered on 14 September 26, 2022. (Dkt. Nos. 9, 10, 13, 17.)1 The Court held an initial case management 15 conference on October 20, 2022. Plaintiff failed to appear. (Dkt. Nos. 18, 20.) The Court set a 16 further case management conference for November 17, 2022 and warned Plaintiff that if he failed 17 to appear the Court would issue an order to show cause for failure to prosecute. (Dkt. No. 20.) 18 Plaintiff again failed to appear and did not otherwise communicate with the Court. (Dkt. No. 23.) 19 The Court issued an order directing Plaintiff to show cause why his case should not be dismissed 20 for failure to prosecute, in writing, by November 28, 2022. (Dkt. No. 24.) To date, Plaintiff has 21 not filed any response. 22 DISCUSSION 23 Under Federal Rule of Civil Procedure 41(b), a court may involuntarily dismiss an action if 24 the plaintiff fails to prosecute or fails to comply with a rule or court order. See Fed. R. Civ. P. 25 41(b); Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890 (9th Cir. 2019).

26 Courts are to weigh five factors in deciding whether to dismiss a case 27 for failure to comply with a court order: (1) the public’s interest in 1 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 2 policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. These factors are not a series of 3 conditions precedent before the judge can do anything, but a way for a district judge to think about what to do. 4 5 In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) 6 (cleaned up). The factors apply equally to deciding whether to dismiss for failure to prosecute. 7 See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). 8 The balance of factors favors dismissal. First, “the public’s interest in expeditious 9 resolution of litigation always favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th 10 Cir. 1999). Second, Plaintiff’s failure to prosecute has “caused the action to come to a complete 11 halt,” which prevents the Court from controlling the pace of its own docket. Id. (cleaned up). 12 Third, although Defendants are not prejudiced just because the lawsuit is pending, they are at risk 13 of prejudice from ongoing, unjustified delays; thus, this factor slightly favors dismissal. See id. at 14 990–91. Fourth, the public policy in favor of resolving cases on their merits weighs against 15 dismissal. Fifth, the Court used less drastic measures by setting a further case management 16 conference and issuing a written order that (1) required Plaintiff to show cause in writing why his 17 case should not be dismissed for failure to prosecute and (2) warned that failure to comply could 18 result in dismissal. See Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992) (“The district judge 19 has an obligation to warn the plaintiff that dismissal is imminent.”); e.g., Ferdik v. Bonzelet, 963 20 F.2d 1258, 1261 (9th Cir. 1992), as amended (May 22, 1992) (noting that order clearly explained 21 what plaintiff needed to do and reiterated that failure to comply would result in dismissal). Since 22 the initial case management conference on October 20, 2022, Plaintiff has not appeared, filed 23 anything, or otherwise communicated with the Court. 24 Accordingly, the balance of factors favors dismissal. 25 CONCLUSION 26 This case is DISMISSED for failure to prosecute. See Fed. R. Civ. P. 41(b). The Clerk 27 shall close the file. 1 IT IS SO ORDERED. 2 || Dated: January 3, 2023 3 4 ne JACQUELINE SCOTT CORL 5 United States District Judge 6 7 8 9 10 11 a 12

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KEITH RIVERS, Case No. 22-cv-01576-JSC

8 Plaintiff, ORDER OF DISMISSAL FOR 9 v. FAILURE TO PROSECUTE

10 AMERICAN CANYON POLICE Re: Dkt. No. 24 DEPARTMENT, et al., 11 Defendants.

12 13 Defendants were served with Plaintiff’s complaint on August 15, 2022 and answered on 14 September 26, 2022. (Dkt. Nos. 9, 10, 13, 17.)1 The Court held an initial case management 15 conference on October 20, 2022. Plaintiff failed to appear. (Dkt. Nos. 18, 20.) The Court set a 16 further case management conference for November 17, 2022 and warned Plaintiff that if he failed 17 to appear the Court would issue an order to show cause for failure to prosecute. (Dkt. No. 20.) 18 Plaintiff again failed to appear and did not otherwise communicate with the Court. (Dkt. No. 23.) 19 The Court issued an order directing Plaintiff to show cause why his case should not be dismissed 20 for failure to prosecute, in writing, by November 28, 2022. (Dkt. No. 24.) To date, Plaintiff has 21 not filed any response. 22 DISCUSSION 23 Under Federal Rule of Civil Procedure 41(b), a court may involuntarily dismiss an action if 24 the plaintiff fails to prosecute or fails to comply with a rule or court order. See Fed. R. Civ. P. 25 41(b); Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890 (9th Cir. 2019).

26 Courts are to weigh five factors in deciding whether to dismiss a case 27 for failure to comply with a court order: (1) the public’s interest in 1 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 2 policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. These factors are not a series of 3 conditions precedent before the judge can do anything, but a way for a district judge to think about what to do. 4 5 In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) 6 (cleaned up). The factors apply equally to deciding whether to dismiss for failure to prosecute. 7 See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). 8 The balance of factors favors dismissal. First, “the public’s interest in expeditious 9 resolution of litigation always favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th 10 Cir. 1999). Second, Plaintiff’s failure to prosecute has “caused the action to come to a complete 11 halt,” which prevents the Court from controlling the pace of its own docket. Id. (cleaned up). 12 Third, although Defendants are not prejudiced just because the lawsuit is pending, they are at risk 13 of prejudice from ongoing, unjustified delays; thus, this factor slightly favors dismissal. See id. at 14 990–91. Fourth, the public policy in favor of resolving cases on their merits weighs against 15 dismissal. Fifth, the Court used less drastic measures by setting a further case management 16 conference and issuing a written order that (1) required Plaintiff to show cause in writing why his 17 case should not be dismissed for failure to prosecute and (2) warned that failure to comply could 18 result in dismissal. See Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992) (“The district judge 19 has an obligation to warn the plaintiff that dismissal is imminent.”); e.g., Ferdik v. Bonzelet, 963 20 F.2d 1258, 1261 (9th Cir. 1992), as amended (May 22, 1992) (noting that order clearly explained 21 what plaintiff needed to do and reiterated that failure to comply would result in dismissal). Since 22 the initial case management conference on October 20, 2022, Plaintiff has not appeared, filed 23 anything, or otherwise communicated with the Court. 24 Accordingly, the balance of factors favors dismissal. 25 CONCLUSION 26 This case is DISMISSED for failure to prosecute. See Fed. R. Civ. P. 41(b). The Clerk 27 shall close the file. 1 IT IS SO ORDERED. 2 || Dated: January 3, 2023 3 4 ne JACQUELINE SCOTT CORL 5 United States District Judge 6 7 8 9 10 11 a 12

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Rivers v. City of American Canyon, (N.D. Cal. 2023).

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In Re Phenylpropanolamine (Ppa) Products Liability Litigation, Shantell Allen, on Behalf of Allen, Vera v. Bayer Corporation, Leon Anderson, Jr. v. Bayer Corporation, Leslie Ackel v. Bayer Corporation, Bridgett Arrington v. Bayer Corporation, Calvin McGriggs v. Delaco Company, Betty Clinton v. Delaco Company, Donna Sasseen v. Ide Interstate Inc., Elizabeth Page v. Bayer Corporation, Marie Riley v. Wyeth, Obo Itself and Its Unincorporated Division, Wyeth Consumer Healthcare, Fka Whitehall-Robins Healthcare Formerly Known as American Home Products Corporation, and Keva K. Alford, on Behalf of All Wrongful Death Beneficiaries of Henry Dexter, and Eddie Bullock v. Wyeth, Obo Itself and Its Unincorporated Division, Wyeth Consumer Healthcare, Fka Whitehall-Robins Healthcare Formerly Known as American Home Products Corporation, and Novartis Pharmaceuticals Corporation, Bobby Holmes v. Bayer Corporation, Melody McDaniel v. Wal-Mart Stores, Inc., Samantha Samuels v. Bayer Corporation

460 F.3d 1217 (Ninth Circuit, 2006)

Applied Underwriters, Inc. v. Larry Lichtenegger

913 F.3d 884 (Ninth Circuit, 2019)

Henderson v. Duncan

779 F.2d 1421 (Ninth Circuit, 1986)

Opinion

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