Tony Carrera v. D. Caviness

• Court: District Court, C.D. California
• Decided: January 19, 2024
• Docket: 5:23-cv-00170
• Status: Unknown

Opinion

1 2

8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 TONY M. CARRERA, Case No. 5:23-cv-000170-FMO (GJS) 12 Plaintiff,

13 v. ORDER DISMISSING ACTION WITHOUT PREJUDICE 14 D. CAVINESS, et al.,

15 Defendants.

16 17 18 On January 30, 2023, Plaintiff filed a pro se civil rights complaint [Dkt. 1, 19 “Complaint”], which the named Defendants thereafter moved to dismiss [Dkt. 11, 20 “Motion”]. Following briefing, United States Magistrate Judge Gail J. Standish 21 issued a Report and Recommendation, which found that the Complaint was 22 defective as a whole and should be dismissed, with leave to amend to be granted 23 only in two specified respects. [Dkt. 22, “Report.”] Plaintiff did not file Objections 24 to the Report. On November 20, 2023, the Court issued an Order accepting the 25 Report, granting the Motion, and dismissing the Complaint. [Dkt. 23, “November 26 20 Order.”] The November 20 Order advised Plaintiff that: if he wanted to have 27 this case proceed, he must file and serve a First Amended Complaint within 30 days; 28 and if he failed to comply with the November 20 Order in a timely manner, 1 2 Civil Procedure. 3 The First Amended Complaint was required to be filed by no later than 4 December 20, 2023, but this has not happened. It is now well past Plaintiff’s 5 deadline for complying with the November 20 Order, and he has not done so, nor 6 has he requested an extension of time to do so or otherwise communicated with the 7 Court. 8 Rule 41(b) of the Federal Rules of Civil Procedure grants federal district 9 courts the authority to sua sponte dismiss actions for failure to prosecute. Link v. 10 Wabash R. Co., 370 U.S. 626, 629-30 (1962). In determining whether dismissal for 11 lack of prosecution is proper, a court must weigh several factors, including: (1) the 12 public’s interest in expeditious resolution of litigation; (2) the court’s need to 13 manage its docket; (3) the risk of prejudice to defendants; (4) the availability of less 14 drastic sanctions; and (5) the public policy favoring the disposition of cases on their 15 merits. In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 16 (9th Cir. 2006). 17 In this case, the fifth factor, the general policy favoring resolution of cases on 18 the merits, cannot be said to favor retention of this action on the Court’s docket. As 19 explained in the Report, the Complaint was defective in its entirety. While the 20 Report recommended that leave to amend be granted in two respects, the Magistrate 21 Judge expressed substantial doubt that the defects identified could be rectified with 22 amendment. The Court agrees that it is unlikely Plaintiff could state a viable claim 23 for the reasons identified in the Report, and apparently, he concurs, given his failure 24 to attempt amendment. See In re PPA Prods. Liab. Litig., 460 F.3d at 1228 (“this 25 factor lends little support to a party whose responsibility it is to move a case toward 26 disposition on the merits but whose conduct impedes progress in that direction”). 27 Plaintiff’s noncompliance with the November 20 Order necessarily implicates 28 both the public interest in the expeditious resolution of litigation and the Court’s 1 2 Prods. Liab. Litig., 460 F.3d at 1227; see also Yourish v. California Amplifier, 191 3 F.3d 983, 990-91 (9th Cir. 1999) (“the public’s interest in expeditious resolution of 4 litigation always favors dismissal”). There is no extant operative complaint in this 5 action due to Plaintiff’s inaction, and thus, the case is stalled and unable to proceed. 6 The third factor – possible prejudice to the opposing party – is, at best, neutral 7 to Plaintiff. While there is no evidence that Plaintiff’s actions have resulted in any 8 actual prejudice to Defendants as yet, “[t]he law … presumes prejudice from 9 unreasonable delay.” In re PPA Prods. Liab. Litig., 460 F.3d at 1227. 10 In addition, the fourth factor favors dismissal. As recounted above, through 11 the November 20 Order, Plaintiff was cautioned expressly that his failure to file an 12 amended complaint could result in the dismissal of this action under Rule 41(b). 13 Having been so cautioned, yet having failed to take the action needed to allow this 14 case to survive, Plaintiff appears to lack any interest in pursuing this case anymore. 15 Under these circumstances, dismissal is appropriate. 16 A balancing of these factors thus leads to the conclusion that dismissal 17 without prejudice, pursuant to Rule 41(b), is warranted. See Ferdik v. Bonzelet, 963 18 F.2d 1258, 1263 (9th Cir. 1992) (dismissal appropriate when strongly supported by 19 three factors); Malone v. United States Postal Serv., 833 F.2d 128, 133 n.2 (9th Cir. 20 1987) (dismissal appropriate when supported by four factors). 21 Accordingly, for the foregoing reasons, IT IS ORDERED that this case is 22 dismissed without prejudice, pursuant to Rule 41(b) of the Federal Rules of Civil 23 Procedure. 24 IT IS SO ORDERED. 25 26 DATED: January 19, 2024 _________/s/______________________ FERNANDO M. OLGUIN 27 UNITED STATES DISTRICT JUDGE 28