Case 2:21-cv-00582-DMG-RAO Document 33 Filed 05/06/22 Page 1 of 5 Page ID #:127
1 2 3 4 5 6 7 10 11 TOM FRANKLIN MORRIS, Case No. CV 21-00582-DMG (RAO)
12 Plaintiff,
13 v. ORDER DISMISSING COMPLAINT 14 ROBERTO ORTIZ, et al., 15 Defendants. 16
17 I. INTRODUCTION 18 On January 20, 2021, Plaintiff Tom Franklin Morris (“Plaintiff”) filed a 19 Complaint pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Dkt. No. 20 1. On May 17, 2021, the Court directed service of process by the United States 21 Marshal (“USM”). Dkt. Nos. 14, 15. On January 31, 2022, USM filed a process 22 receipt and return. Dkt. No. 30. On February 18, 2022, the Court issued an order 23 directing Plaintiff to provide his current address after a search of the Federal Bureau 24 of Prison’s inmate locator indicated that Plaintiff had been released from custody. 25 Dkt. No. 31. Plaintiff did not file a timely response to the order and the order was 26 returned to the Court as undelivered. Dkt. No. 32. For the reasons set forth below, 27 the Court dismisses this action without prejudice for failure to prosecute. 28 Case 2:21-cv-00582-DMG-RAO Document 33 Filed 05/06/22 Page 2 of 5 Page ID #:128
2 Pro se plaintiffs must keep the Court apprised of their current address. See 3 Notice of Assignment, Dkt. No. 3 (“Local Rule 83-2.4 requires that the Court must 4 be notified within five (5) days of any address change.”); L.R. 41-6 (“A party 5 proceeding pro se must keep the Court and all other parties informed of the party’s 6 current address as well as any telephone number and email address.”). The Notice 7 of Assignment provides that if mail directed by the clerk to a pro se litigant’s address 8 of record is returned undelivered by the Post Office, and if the Court is not notified 9 in writing within five days thereafter of the litigant’s current address, the Court may 10 dismiss the case for want of prosecution. See Dkt. No. 3. Additionally, Local Rule 11 41-6 provides that if a Court order served on a pro se plaintiff at his address of record 12 is returned by the Postal Service as undeliverable and the pro se party has not filed a 13 notice of change of address within 14 days of the service date of the order, the Court 14 may dismiss the action for failure to prosecute. L.R. 41-6. 15 Here, Plaintiff has failed to keep the Court apprised of his current address. The 16 Court directed him to provide his current address by March 18, 2022, but Plaintiff 17 failed to do so. Additionally, the February 18, 2022 order was returned to the Court 18 as undelivered on March 16, 2022. It has been more than five days since the February 19 18, 2022 order was returned and more than 14 days after the service date of the 20 February 18, 2022 order. Accordingly, the Court may dismiss the action for failure 21 to prosecute. 22 Federal Rule of Civil Procedure 41 (“Rule 41”) governs the dismissal of 23 federal actions. Rule 41(b) grants district courts authority to dismiss actions for 24 failure to comply with court orders or for failure to prosecute. Ferdik v. Bonzelet, 25 963 F.2d 1258, 1260-63 (9th Cir. 1992); Link v. Wabash R.R. Co., 370 U.S. 626, 629- 26 31, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962). District courts may exercise their inherent 27 power to control their dockets by imposing sanctions, including, where appropriate, 28 the dismissal of a case. Ferdik, 963 F.2d at 1260.
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1 A court must weigh five factors when determining whether to dismiss an action 2 for failure to prosecute or failure to comply with court orders: 3 (1) the public’s interest in expeditious resolution of litigation; 4 (2) the court’s need to manage its docket; 5 (3) the risk of prejudice to defendants; 6 (4) the availability of less drastic alternatives; and 7 (5) the public policy favoring disposition of cases on their merits. 8 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Dismissal is appropriate 9 where at least four factors support dismissal, or where three factors “strongly 10 support” dismissal. Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 11 1990). 12 Here, the first and second factors (the public’s interest in expeditious 13 resolution and the Court’s need to manage its docket) strongly favor dismissal. 14 “[T]he public’s interest in expeditious resolution of litigation always favors 15 dismissal.” Id. Plaintiff has failed to keep the Court apprised of his current address 16 and failed to respond to the Court’s order directing him to provide a current address. 17 Plaintiff’s “noncompliance has caused [this] action to come to a complete halt, 18 thereby allowing [him] to control the pace of the docket rather than the Court.” 19 Yourish, 191 F.3d at 990. Plaintiff’s inaction interferes with the public’s interest in 20 expeditious resolution of the litigation and the Court’s need to manage its docket. 21 Accordingly, these two factors weigh strongly in favor of dismissal. 22 The third factor (the risk of prejudice to the defendant) requires a defendant to 23 establish “that plaintiff’s actions impaired defendant’s ability to proceed to trial or 24 threatened to interfere with the rightful decision of the case.” Pagtalunan, 291 F.3d 25 at 642. “Limited delays and the prejudice to a defendant from the pendency of a 26 lawsuit are realities of the system that have to be accepted, provided the prejudice is 27 not compounded by ‘unreasonable’ delays.” Ash v. Cvetkov, 739 F.2d 493, 496 (9th 28 Cir. 1984). However, “the risk of prejudice to the defendant is related to the
3 Case 2:21-cv-00582-DMG-RAO Document 33 Filed 05/06/22 Page 4 of 5 Page ID #:130
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Case 2:21-cv-00582-DMG-RAO Document 33 Filed 05/06/22 Page 1 of 5 Page ID #:127
1 2 3 4 5 6 7 10 11 TOM FRANKLIN MORRIS, Case No. CV 21-00582-DMG (RAO)
12 Plaintiff,
13 v. ORDER DISMISSING COMPLAINT 14 ROBERTO ORTIZ, et al., 15 Defendants. 16
17 I. INTRODUCTION 18 On January 20, 2021, Plaintiff Tom Franklin Morris (“Plaintiff”) filed a 19 Complaint pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Dkt. No. 20 1. On May 17, 2021, the Court directed service of process by the United States 21 Marshal (“USM”). Dkt. Nos. 14, 15. On January 31, 2022, USM filed a process 22 receipt and return. Dkt. No. 30. On February 18, 2022, the Court issued an order 23 directing Plaintiff to provide his current address after a search of the Federal Bureau 24 of Prison’s inmate locator indicated that Plaintiff had been released from custody. 25 Dkt. No. 31. Plaintiff did not file a timely response to the order and the order was 26 returned to the Court as undelivered. Dkt. No. 32. For the reasons set forth below, 27 the Court dismisses this action without prejudice for failure to prosecute. 28 Case 2:21-cv-00582-DMG-RAO Document 33 Filed 05/06/22 Page 2 of 5 Page ID #:128
2 Pro se plaintiffs must keep the Court apprised of their current address. See 3 Notice of Assignment, Dkt. No. 3 (“Local Rule 83-2.4 requires that the Court must 4 be notified within five (5) days of any address change.”); L.R. 41-6 (“A party 5 proceeding pro se must keep the Court and all other parties informed of the party’s 6 current address as well as any telephone number and email address.”). The Notice 7 of Assignment provides that if mail directed by the clerk to a pro se litigant’s address 8 of record is returned undelivered by the Post Office, and if the Court is not notified 9 in writing within five days thereafter of the litigant’s current address, the Court may 10 dismiss the case for want of prosecution. See Dkt. No. 3. Additionally, Local Rule 11 41-6 provides that if a Court order served on a pro se plaintiff at his address of record 12 is returned by the Postal Service as undeliverable and the pro se party has not filed a 13 notice of change of address within 14 days of the service date of the order, the Court 14 may dismiss the action for failure to prosecute. L.R. 41-6. 15 Here, Plaintiff has failed to keep the Court apprised of his current address. The 16 Court directed him to provide his current address by March 18, 2022, but Plaintiff 17 failed to do so. Additionally, the February 18, 2022 order was returned to the Court 18 as undelivered on March 16, 2022. It has been more than five days since the February 19 18, 2022 order was returned and more than 14 days after the service date of the 20 February 18, 2022 order. Accordingly, the Court may dismiss the action for failure 21 to prosecute. 22 Federal Rule of Civil Procedure 41 (“Rule 41”) governs the dismissal of 23 federal actions. Rule 41(b) grants district courts authority to dismiss actions for 24 failure to comply with court orders or for failure to prosecute. Ferdik v. Bonzelet, 25 963 F.2d 1258, 1260-63 (9th Cir. 1992); Link v. Wabash R.R. Co., 370 U.S. 626, 629- 26 31, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962). District courts may exercise their inherent 27 power to control their dockets by imposing sanctions, including, where appropriate, 28 the dismissal of a case. Ferdik, 963 F.2d at 1260.
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1 A court must weigh five factors when determining whether to dismiss an action 2 for failure to prosecute or failure to comply with court orders: 3 (1) the public’s interest in expeditious resolution of litigation; 4 (2) the court’s need to manage its docket; 5 (3) the risk of prejudice to defendants; 6 (4) the availability of less drastic alternatives; and 7 (5) the public policy favoring disposition of cases on their merits. 8 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Dismissal is appropriate 9 where at least four factors support dismissal, or where three factors “strongly 10 support” dismissal. Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 11 1990). 12 Here, the first and second factors (the public’s interest in expeditious 13 resolution and the Court’s need to manage its docket) strongly favor dismissal. 14 “[T]he public’s interest in expeditious resolution of litigation always favors 15 dismissal.” Id. Plaintiff has failed to keep the Court apprised of his current address 16 and failed to respond to the Court’s order directing him to provide a current address. 17 Plaintiff’s “noncompliance has caused [this] action to come to a complete halt, 18 thereby allowing [him] to control the pace of the docket rather than the Court.” 19 Yourish, 191 F.3d at 990. Plaintiff’s inaction interferes with the public’s interest in 20 expeditious resolution of the litigation and the Court’s need to manage its docket. 21 Accordingly, these two factors weigh strongly in favor of dismissal. 22 The third factor (the risk of prejudice to the defendant) requires a defendant to 23 establish “that plaintiff’s actions impaired defendant’s ability to proceed to trial or 24 threatened to interfere with the rightful decision of the case.” Pagtalunan, 291 F.3d 25 at 642. “Limited delays and the prejudice to a defendant from the pendency of a 26 lawsuit are realities of the system that have to be accepted, provided the prejudice is 27 not compounded by ‘unreasonable’ delays.” Ash v. Cvetkov, 739 F.2d 493, 496 (9th 28 Cir. 1984). However, “the risk of prejudice to the defendant is related to the
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1 plaintiff’s reason for defaulting in failing to timely” act. Yourish, 191 F.3d at 991. 2 The better the reason, the less likely it is that the third factor will favor dismissal. 3 See id. (finding that the plaintiff’s “paltry excuse for his default on the judge’s order 4 indicate[d] that there was sufficient prejudice to Defendants from the delay that [the 5 third] factor also strongly favor[ed] dismissal”). The Ninth Circuit has stated that 6 “the failure to prosecute diligently is sufficient by itself to justify a dismissal, even 7 in the absence of a showing of actual prejudice to the defendant from the failure.” 8 Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976); see also In re Eisen, 31 9 F.3d 1447, 1452-53 (9th Cir. 1994) (quoting Anderson). Here, the failure to provide 10 a current address indicates Plaintiff’s loss of interest in the matter. The Court finds 11 that the third factor weighs in favor of dismissal. 12 The fourth factor (the availability of less drastic alternatives) also weighs in 13 favor of dismissal. When the Court discovered that Plaintiff was no longer at his 14 address of record, the Court provided Plaintiff with an opportunity to update his 15 address. Plaintiff failed to comply, and the Court is unable to communicate with 16 Plaintiff without a valid address of record. Plaintiff’s failure to participate in his own 17 lawsuit supports that no lesser sanction will be effective. Also, the Court is 18 dismissing this action without prejudice, a far less drastic alternative than dismissal 19 with prejudice. Accordingly, this factor favors dismissal. See Carey v. King, 856 20 F.2d 1439, 1441 (9th Cir. 1988) (affirming dismissal without prejudice and finding 21 no less drastic sanction was available because the district court could not contact the 22 plaintiff to threaten him with some lesser sanction). 23 Regarding the fifth factor, public policy generally favors the disposition of 24 cases on their merits. Pagtalunan, 291 F.3d at 643. However, it is the responsibility 25 of the moving party to move the case toward a timely disposition on the merits, and 26 to refrain from dilatory and evasive tactics. Morris v. Morgan Stanley & Co., 942 27 F.2d 648, 652 (9th Cir. 1991). It does not appear that retention of this case would 28 ///
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1 increase the likelihood of the matter being resolved on its merits. This factor does 2 not weigh in favor of or against dismissal. 3 Four factors favor dismissal and one factor is neutral. Accordingly, dismissal 4 of this action without prejudice 1s appropriate. 5 II. CONCLUSION 6 For the reasons set forth above, IT IS ORDERED that this case is DISMISSED 7 without prejudice. 9 DATED: May 6, 2022 Dn J ‘0 DOLLY Gn 1 UNITED ®TATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28