1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BIJUN WANG Case No. 21-cv-01068-BAS-KSC
12 Plaintiff, ORDER DISMISSING ACTION FOR 13 v. FAILURE TO SHOW CAUSE
14 ALEJANDRO MAYORKAS, et al.,
15 Defendants. 16 17 Approximately 168 days have passed since Plaintiff filed this action, yet Plaintiff 18 still has not shown proof that she effectuated service upon Defendants in accordance with 19 Federal Rule of Civil Procedure (“Rule”) 4(m). (Pet., ECF No. 1.) Plaintiff is in default 20 not only of Rule 4(m), but also of this Court’s Order to Show Cause why this action should 21 not be dismissed for failure to prosecute pursuant to Rule 41(b) (“OSC”), which 22 functionally enlarged nearly twofold Plaintiff’s deadline to submit proof of service and that 23 was met only with Plaintiff’s silence. (OSC, ECF No. 3.) Accordingly, for the reasons 24 stated below, this Court exercises its inherent authority to dismiss this action. 25 I. BACKGROUND 26 Plaintiff, represented by counsel, commenced this action on June 8, 2021 by filing 27 petition for Writ of Mandamus. (Pet.) A summons was issued that same day. (ECF No. 28 1 2.) Plaintiff did not submit proof that she served any Defendant within the 90-day period 2 prescribed under Rule 4(m). 3 On October 14, 2021, the Court issued an Order to Show Cause (“OSC”) why the 4 case should not be dismissed for Plaintiff’s failure to show that service on Defendants had 5 been completed consistent with Rule 4(m). (OSC.) The OSC directed Plaintiff that cause 6 could be shown by completing service of the Petition “no later than November 15, 2021,” 7 and warned Plaintiff that failure to do so “will result in the Court dismissing this action.” 8 (Id. 1–2.) November 15, 2021 has come and gone, yet Plaintiff still has not filed proof of 9 service on any Defendant nor has any adversary appeared in this action. 10 II. LEGAL STANDARD 11 A district court may dismiss a plaintiff’s action for her failure to prosecute or failure 12 to comply with a court order. See Fed. R. Civ. P. 41(b); Pagtalunan v. Galaza, 291 F.3d 13 639, 642 (9th Cir. 2002); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (holding 14 that a district court may dismiss an action for failure to comply with any order of the court); 15 Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962) (holding courts are vested with an 16 inherent power “to manage their own affairs so as to achieve the orderly and expeditious 17 disposition of cases”). Although due process generally requires that the party have notice 18 and opportunity to be heard before dismissal, when a party may be said to have knowledge 19 of the consequences of his failure to act, the court may dispense with the necessity of 20 advance notice and a hearing. Link, 370 U.S. at 630–32. 21 “Despite this authority, dismissal is a harsh penalty and, therefore, it should only be 22 imposed in extreme circumstances.” Ferdik, 963 F.2d at 1260. Therefore, to determine 23 whether dismissal under its inherent authority is appropriate, “the district court must weigh 24 five factors, including: (1) the public’s interest in expeditious resolution of litigation; (2) 25 the court’s need to manage its docket; (3) the risk of prejudice to defendants; (4) the public 26 policy of favoring disposition of cases on their merits; and (5) the availability of less drastic 27 alternatives.” Id. at 1260–61 (internal quotations omitted). 28 1 Generally, these five factors weigh in favor of sua sponte dismissal where a plaintiff 2 has failed to prosecute a case or comply with an order of the court. See Eldridge v. Block, 3 832 F.2d 1132, 1136 (9th Cir. 1987); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 4 F.3d 683, 689 (9th Cir. 2005). 5 III. ANALYSIS 6 On balance, the above-mentioned factors weigh decisively in favor of dismissal 7 because Plaintiff has not demonstrated compliance with the service requirements under the 8 Federal Rules of Civil Procedure and this Court’s OSC. 9 A. Public’s Interest in Expeditious Resolution 10 “[T]he public’s interest in expeditious resolution of litigation always favors 11 dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). In this case, 12 Plaintiff’s inaction has undermined expeditious resolution. This case has been pending for 13 nearly six months without the appearance of an adverse party or any demonstration by 14 Plaintiff that the adverse party was properly served. The Court’s attempt to prompt 15 Plaintiff to complete this step has been met with silence. The Court cannot await 16 indefinitely Plaintiff’s response to the Court’s directive to file a proof of service. Thus, the 17 Court finds that this factor weighs in favor of dismissal. 18 B. Court’s Need to manage its Docket 19 A district court is best positioned to determine whether the delay in a particular case 20 interferes with docket management and the public interest. Ash v. Cuetkov, 739 F.2d 493, 21 496 (9th Cir. 1984). The Court finds that Plaintiff’s failure to complete the fundamental 22 step of showing proof of service—despite the Court’s OSC—has resulted in a continued 23 delay in the prosecution of this case and has “impermissibly allowed [P]laintiff to control 24 the pace of the docket rather than the [C]ourt.” See Smith v. Cty. of Riverside Sheriff Dep’t, 25 No. ED CV 17-1969 DSF (SP), 2019 WL 7865170, at *3 (C.D. Cal. Nov. 18, 2019) (citing 26 Pagtalunan, 291 F.3d at 642 (“It is incumbent on the Court to manage its docket without 27 being subject to routine noncompliance of litigants.”)). Consequently , this factor weighs 28 in favor of dismissal. 1 C. Prejudice to Defendants 2 “To prove prejudice, a defendant must establish that [a] plaintiff’s actions impaired 3 defendant’s ability to proceed to trial or threatened to interfere with the rightful decision of 4 the case.” Pagtalunan, 291 F.3d at 642 (citing Malone v. U.S. Postal Serv., 833 F.2d 128, 5 131 (9th Cir. 1987)). “The pendency of the lawsuit is not sufficiently prejudicial itself to 6 warrant dismissal.” Yourish, 191 F.3d at 991; accord Ash, 739 F.2d at 496. However, 7 “even in the absence of a showing of actual prejudice to the defendant,” prejudice is 8 presumed from unreasonable delay. In re Eisen, 31 F.3d 1447, 1552–53 (9th Cir. 1994); 9 see also Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976) (“The law presumes 10 injury from unreasonable delay.”). 11 “Whether prejudice is sufficient to support an order of dismissal is in part judged 12 with reference to the strength of the plaintiff’s excuse for default.” Malone, 833 F.2d at 13 131. Plaintiff was not responsive to the OSC, thus, her reasons for failing to prosecute are 14 unknown. See Garcia v. Fed. Bureau of Prisons, No. 5:19-CV-00008-PSG-MAA, 2019 15 WL 6040412, at *4 (C.D. Cal. Oct. 21, 2019) (Report & Recommendation), adopted, 2019 16 WL 6039943 (C.D. Cal. Nov. 12, 2019).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BIJUN WANG Case No. 21-cv-01068-BAS-KSC
12 Plaintiff, ORDER DISMISSING ACTION FOR 13 v. FAILURE TO SHOW CAUSE
14 ALEJANDRO MAYORKAS, et al.,
15 Defendants. 16 17 Approximately 168 days have passed since Plaintiff filed this action, yet Plaintiff 18 still has not shown proof that she effectuated service upon Defendants in accordance with 19 Federal Rule of Civil Procedure (“Rule”) 4(m). (Pet., ECF No. 1.) Plaintiff is in default 20 not only of Rule 4(m), but also of this Court’s Order to Show Cause why this action should 21 not be dismissed for failure to prosecute pursuant to Rule 41(b) (“OSC”), which 22 functionally enlarged nearly twofold Plaintiff’s deadline to submit proof of service and that 23 was met only with Plaintiff’s silence. (OSC, ECF No. 3.) Accordingly, for the reasons 24 stated below, this Court exercises its inherent authority to dismiss this action. 25 I. BACKGROUND 26 Plaintiff, represented by counsel, commenced this action on June 8, 2021 by filing 27 petition for Writ of Mandamus. (Pet.) A summons was issued that same day. (ECF No. 28 1 2.) Plaintiff did not submit proof that she served any Defendant within the 90-day period 2 prescribed under Rule 4(m). 3 On October 14, 2021, the Court issued an Order to Show Cause (“OSC”) why the 4 case should not be dismissed for Plaintiff’s failure to show that service on Defendants had 5 been completed consistent with Rule 4(m). (OSC.) The OSC directed Plaintiff that cause 6 could be shown by completing service of the Petition “no later than November 15, 2021,” 7 and warned Plaintiff that failure to do so “will result in the Court dismissing this action.” 8 (Id. 1–2.) November 15, 2021 has come and gone, yet Plaintiff still has not filed proof of 9 service on any Defendant nor has any adversary appeared in this action. 10 II. LEGAL STANDARD 11 A district court may dismiss a plaintiff’s action for her failure to prosecute or failure 12 to comply with a court order. See Fed. R. Civ. P. 41(b); Pagtalunan v. Galaza, 291 F.3d 13 639, 642 (9th Cir. 2002); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (holding 14 that a district court may dismiss an action for failure to comply with any order of the court); 15 Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962) (holding courts are vested with an 16 inherent power “to manage their own affairs so as to achieve the orderly and expeditious 17 disposition of cases”). Although due process generally requires that the party have notice 18 and opportunity to be heard before dismissal, when a party may be said to have knowledge 19 of the consequences of his failure to act, the court may dispense with the necessity of 20 advance notice and a hearing. Link, 370 U.S. at 630–32. 21 “Despite this authority, dismissal is a harsh penalty and, therefore, it should only be 22 imposed in extreme circumstances.” Ferdik, 963 F.2d at 1260. Therefore, to determine 23 whether dismissal under its inherent authority is appropriate, “the district court must weigh 24 five factors, including: (1) the public’s interest in expeditious resolution of litigation; (2) 25 the court’s need to manage its docket; (3) the risk of prejudice to defendants; (4) the public 26 policy of favoring disposition of cases on their merits; and (5) the availability of less drastic 27 alternatives.” Id. at 1260–61 (internal quotations omitted). 28 1 Generally, these five factors weigh in favor of sua sponte dismissal where a plaintiff 2 has failed to prosecute a case or comply with an order of the court. See Eldridge v. Block, 3 832 F.2d 1132, 1136 (9th Cir. 1987); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 4 F.3d 683, 689 (9th Cir. 2005). 5 III. ANALYSIS 6 On balance, the above-mentioned factors weigh decisively in favor of dismissal 7 because Plaintiff has not demonstrated compliance with the service requirements under the 8 Federal Rules of Civil Procedure and this Court’s OSC. 9 A. Public’s Interest in Expeditious Resolution 10 “[T]he public’s interest in expeditious resolution of litigation always favors 11 dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). In this case, 12 Plaintiff’s inaction has undermined expeditious resolution. This case has been pending for 13 nearly six months without the appearance of an adverse party or any demonstration by 14 Plaintiff that the adverse party was properly served. The Court’s attempt to prompt 15 Plaintiff to complete this step has been met with silence. The Court cannot await 16 indefinitely Plaintiff’s response to the Court’s directive to file a proof of service. Thus, the 17 Court finds that this factor weighs in favor of dismissal. 18 B. Court’s Need to manage its Docket 19 A district court is best positioned to determine whether the delay in a particular case 20 interferes with docket management and the public interest. Ash v. Cuetkov, 739 F.2d 493, 21 496 (9th Cir. 1984). The Court finds that Plaintiff’s failure to complete the fundamental 22 step of showing proof of service—despite the Court’s OSC—has resulted in a continued 23 delay in the prosecution of this case and has “impermissibly allowed [P]laintiff to control 24 the pace of the docket rather than the [C]ourt.” See Smith v. Cty. of Riverside Sheriff Dep’t, 25 No. ED CV 17-1969 DSF (SP), 2019 WL 7865170, at *3 (C.D. Cal. Nov. 18, 2019) (citing 26 Pagtalunan, 291 F.3d at 642 (“It is incumbent on the Court to manage its docket without 27 being subject to routine noncompliance of litigants.”)). Consequently , this factor weighs 28 in favor of dismissal. 1 C. Prejudice to Defendants 2 “To prove prejudice, a defendant must establish that [a] plaintiff’s actions impaired 3 defendant’s ability to proceed to trial or threatened to interfere with the rightful decision of 4 the case.” Pagtalunan, 291 F.3d at 642 (citing Malone v. U.S. Postal Serv., 833 F.2d 128, 5 131 (9th Cir. 1987)). “The pendency of the lawsuit is not sufficiently prejudicial itself to 6 warrant dismissal.” Yourish, 191 F.3d at 991; accord Ash, 739 F.2d at 496. However, 7 “even in the absence of a showing of actual prejudice to the defendant,” prejudice is 8 presumed from unreasonable delay. In re Eisen, 31 F.3d 1447, 1552–53 (9th Cir. 1994); 9 see also Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976) (“The law presumes 10 injury from unreasonable delay.”). 11 “Whether prejudice is sufficient to support an order of dismissal is in part judged 12 with reference to the strength of the plaintiff’s excuse for default.” Malone, 833 F.2d at 13 131. Plaintiff was not responsive to the OSC, thus, her reasons for failing to prosecute are 14 unknown. See Garcia v. Fed. Bureau of Prisons, No. 5:19-CV-00008-PSG-MAA, 2019 15 WL 6040412, at *4 (C.D. Cal. Oct. 21, 2019) (Report & Recommendation), adopted, 2019 16 WL 6039943 (C.D. Cal. Nov. 12, 2019). Because the presumption of prejudice arises from 17 a plaintiff’s unexplained failure to prosecute, the third factor favors dismissal. See id. at 18 *4 (citing Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002)). 19 D. Public Policy 20 Public policy favors disposition of cases on the merits. Pagtalunan, 291 F.3d at 643. 21 Thus, the Court recognizes that this factor weighs against dismissal. 22 E. Availability of Less Drastic Alternatives 23 In assessing this factor, the Court considers whether alternatives less drastic than 24 dismissal are feasible given the circumstances of the case. In re Eisen, 31 F.3d at 1455. 25 “[A] district court’s warning to a party that [her] failure to obey the court’s order will result 26 in dismissal can satisfy the ‘consideration of alternatives’ requirement.” Ferdik, 963 F.2d 27 at 1262. 28 1 When it issued its OSC, this Court afforded Plaintiff with a less drastic alternative 2 || to dismissal. It did so by extending the 90-day period delineated under Rule 4(m) to show 3 || proof of service and warning Plaintiff of the consequences failure to do so would entail. 4 || As mentioned above, the OSC was met with silence. After 168 days without Plaintiff's 5 || filing of proof of service, this Court concludes that less drastic alternatives to dismissal are 6 || not available in these circumstances. 7 On balance, four out of five factors weigh in favor of dismissal. Accordingly, the 8 ||Court exercises its inherent authority to dismiss the Complaint without prejudice. See 9 || O’Brien v. Visa USA, Inc., 225 F. App’x 677, 678 (9th Cir. 2007) (affirming dismissal for 10 failure to prosecute where plaintiff “did not establish that he served process on any 11 || defendant within” the time period prescribed in Rule 4(m)); Shakar R. v. Saul, No. 5:19- 12 || CV-01716 FMO (ADS), 2020 WL 2319877, at *1 (C.D. Cal. May 11, 2020) (dismissing 13 || for failure to file a proof of service or comply with an OSC requiring the same). 14 ||IV. CONCLUSION AND ORDER 15 Accordingly, the Court DISMISSES WITHOUT PREJUDICE this civil action in 16 |/its entirety based on Plaintiff's failure to prosecute pursuant to Fed. R. Civ. P. 41(b). The 17 Court Clerk is directed to close this case. 18 || ITIS SO ORDERED. 19 /\ oY 20 || DATED: November 23, 2021 ( itl A (Hiphan 21 United States District Judge 22 23 24 25 26 27 28