UnifyCloud LLC v. Sports 1 Marketing Corp

W.D. Washington

UnifyCloud LLC v. Sports 1 Marketing Corp

District Court, W.D. Washington·Decided May 14, 2020·No. 2:19-cv-01519·Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 UNIFYCLOUD, LLC, 9 Plaintiff, Case No. C19-1519-MLP 10 v. ORDER TO SHOW CAUSE 11 SPORTS 1 MARKETING CORP., 12 Defendant. 13

14 UnifyCloud, LLC (“Plaintiff”) filed its Complaint on September 23, 2019. (Dkt. # 1.) 15 Sports 1 Marketing Corporation (“Defendant”) has yet to appear. There has been no activity 16 from Plaintiff in this matter since December 4, 2019, when an Affidavit of Service of Summons 17 was filed. (Dkt. # 10.) On April 20, 2020, a Notice of Assignment to a U.S. Magistrate Judge and 18 Declination of Consent was sent to Plaintiff along with an Order Regarding Initial Disclosures, 19 Joint Status Report, and Early Settlement. (Dkt. # 11, 12.) On April 29, 2020, consent to proceed 20 before a Magistrate Judge was entered. (Dkt. # 13.) 21 It is within the inherent power and discretion of the court to sua sponte dismiss a civil 22 case for lack of prosecution. McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991) (failure to 23 prosecute must be unreasonable in order to support dismissal); Ash v. Cvetkov, 739 F.2d 493, 496 1 (9th Cir. 1984); see Fed. R. Civ. P. 41(b). The Court weighs five factors to determine if 2 involuntary dismissal for lack of prosecution is proper. Pagtalunan v. Galaza, 291 F.3d 639, 642 3 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). Specifically, 4 the Court considers: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s

5 need to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy 6 favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. 7 Id. Dismissal is proper where at least four factors support dismissal or where at least three factors 8 “strongly” support dismissal. Beck v. Pike, 2017 WL 530354, at *5 (W.D. Wash. Feb. 9, 2017) 9 (quoting Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). 10 Accordingly, Plaintiff is ORDERED to show cause by June 12, 2020, why the Complaint 11 in this matter should not be dismissed for lack of prosecution. Failure to show cause shall be 12 deemed a failure to properly prosecute and the Court will dismiss Plaintiff’s Complaint without 13 prejudice. 14 Dated this 14th day of May, 2020.

15 16 A 17 MICHELLE L. PETERSON United States Magistrate Judge 18

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 UNIFYCLOUD, LLC, 9 Plaintiff, Case No. C19-1519-MLP 10 v. ORDER TO SHOW CAUSE 11 SPORTS 1 MARKETING CORP., 12 Defendant. 13

14 UnifyCloud, LLC (“Plaintiff”) filed its Complaint on September 23, 2019. (Dkt. # 1.) 15 Sports 1 Marketing Corporation (“Defendant”) has yet to appear. There has been no activity 16 from Plaintiff in this matter since December 4, 2019, when an Affidavit of Service of Summons 17 was filed. (Dkt. # 10.) On April 20, 2020, a Notice of Assignment to a U.S. Magistrate Judge and 18 Declination of Consent was sent to Plaintiff along with an Order Regarding Initial Disclosures, 19 Joint Status Report, and Early Settlement. (Dkt. # 11, 12.) On April 29, 2020, consent to proceed 20 before a Magistrate Judge was entered. (Dkt. # 13.) 21 It is within the inherent power and discretion of the court to sua sponte dismiss a civil 22 case for lack of prosecution. McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991) (failure to 23 prosecute must be unreasonable in order to support dismissal); Ash v. Cvetkov, 739 F.2d 493, 496 1 (9th Cir. 1984); see Fed. R. Civ. P. 41(b). The Court weighs five factors to determine if 2 involuntary dismissal for lack of prosecution is proper. Pagtalunan v. Galaza, 291 F.3d 639, 642 3 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). Specifically, 4 the Court considers: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s

5 need to manage its docket; (3) the risk of prejudice to the defendant; (4) the public policy 6 favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. 7 Id. Dismissal is proper where at least four factors support dismissal or where at least three factors 8 “strongly” support dismissal. Beck v. Pike, 2017 WL 530354, at *5 (W.D. Wash. Feb. 9, 2017) 9 (quoting Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). 10 Accordingly, Plaintiff is ORDERED to show cause by June 12, 2020, why the Complaint 11 in this matter should not be dismissed for lack of prosecution. Failure to show cause shall be 12 deemed a failure to properly prosecute and the Court will dismiss Plaintiff’s Complaint without 13 prejudice. 14 Dated this 14th day of May, 2020.

15 16 A 17 MICHELLE L. PETERSON United States Magistrate Judge 18

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UnifyCloud LLC v. Sports 1 Marketing Corp, (W.D. Wash. 2020).

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