United States District Court, N.D. California
November 7, 2005.
SAMUEL NICANOR, Plaintiff,
RON SANTOS, Defendant.
The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge
ORDER OF DISMISSAL FOR FAILURE TO PROSECUTE
Plaintiff filed the complaint in this case on December 23,
2002. After the case was reassigned to the undersigned judge, a
case management conference was scheduled for May 1, 2003.
Plaintiff did not appear and an ORDER TO SHOW CAUSE was issued.
While the official file has been archived and is unavailable for
consultation, it appears from the docket that plaintiff appeared
at the hearing on the order to show cause, as the order was
discharged and plaintiff was given thirty additional days to
perfect service on the defendants. The docket further reflects
that the summons was returned executed on all three defendants on
June 23, 2003. On July 7, 2003 two of the defendants, KenKoenen
and the Alameda County Superior Court, were voluntarily dismissed
Nothing else happened in this case until September 2, 2005,
when it was discovered that the case had been inadvertently
closed upon the dismissal of two of the three defendants. A
further case management conference was scheduled for October 6,
2005, and the notice was mailed to plaintiff's address of record
as well as to a post office box that appeared on earlier filed
documents. The notice to his official address was returned
undeliverable; the notice to the post office box was not
returned. The only remaining defendant, Ron Santos, appeared
through his counsel as ordered at the October 6, 2005 case
management conference, and advised the court that proper service
has never been made on him. Plaintiff did not appear. On October 7, 2005, the court issued an ORDER TO SHOW CAUSE,
noting that notwithstanding the court's inadvertent premature
closing of this case, plaintiff has taken no actions to prosecute
this matter, nor has he apprised the court or opposing counsel of
any change of address as required by Civ. L.R. 3-11. Plaintiff
was ordered to show cause why his complaint should not be
dismissed for his failure to prosecute, for failure to serve and
for failure to notify the court and opposing counsel of his
change of address, and hearing on this order to show cause was
scheduled for November 3, 2005, at 2:30 p.m. Plaintiff was warned
that a failure to appear at that hearing would result in the
dismissal of his case. Again, the notice to plaintiff's official
address was returned undeliverable; the notice to the post office
box was not returned. Plaintiff failed to appear at the November
3, 2005 conference.
The court having considered the five factors set forth in
Malone v. United States Postal Service, 833 F.2d 128, 130 (9th
Cir. 1987), and having determined that notwithstanding the public
policy favoring the disposition of actions on their merits, the
court's need to manage its docket and the public interest in the
expeditious resolution of the litigation require dismissal of
this action. In view of plaintiff's lack of response to this
court's prior orders, the court finds there is no appropriate
less drastic sanction. Accordingly, this action is dismissed with
prejudice pursuant to Fed.R.Civ. pro. 41(b) for plaintiff's
failure to prosecute.
IT SO ORDERED.
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