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Beazley Insurance Company, Inc v. Triton Distribution Systems

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


September 6, 2011

BEAZLEY INSURANCE COMPANY, INC., PLAINTIFF,
v.
TRITON DISTRIBUTION SYSTEMS,
INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed September 6, 2011 **

NOT FOR CITATION

United States District Court For the Northern District of California

ORDER THAT CASE BE REASSIGNED TO A DISTRICT JUDGE

REPORT AND RECOMMENDATION

On July 24, 2009, upon Defendants' default being entered and Plaintiff's representation that 19 it intended to file a motion for default judgment, this Court vacated the then-scheduled case 20 management conference. Docket No. 17. Plaintiff never filed anything else, let alone a motion for 21 default judgment. So, the Court ordered that Plaintiff appear on August 30, 2011 to show cause why 22 the case should not be dismissed for failure to prosecute. Docket Nos. 18, 19. Plaintiff did not 23 appear. Docket No. 20. 24

A court has authority to dismiss a plaintiff's action sua sponte due to failure to prosecute.

Link v. Wabash R. Co., 370 U.S. 626, 629-30 (1962). When considering dismissal for lack of 26 prosecution, a district court must weigh the court's need to manage its docket, the public interest in 27 expeditious resolution of litigation, and the risk of prejudice to the defendants against the policy 28 favoring disposition of cases on their merits, and the availability of less drastic sanctions. Ash v. 2 Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984).

Here, Plaintiff failed to appear after being ordered to do so. It was warned that failing to 4 appear or communicate with the Court would result in dismissal. It is unfair to Defendants to leave 5 the case pending and unresolved indefinitely. Plaintiff's actions exhibit a disinterest in pursuing this 6 case and judicial resources cannot continue to be wasted by permitting it to linger. Plaintiff has left 7 the Court with no appropriate alternative but to recommend that the case be dismissed.

Because only Plaintiff has consented to the undersigned's jurisdiction, this Court ORDERS 9 the Clerk of the Court to reassign this case to a district court judge. The undersigned further RECOMMENDS that the newly-assigned district court judge dismiss this action without prejudice for the reasons set forth above.

Pursuant to Federal Rule of Civil Procedure 72(b), any party may serve and file objections to 13 this Report and Recommendation within fourteen days after being served.

IT IS SO ORDERED.

Notice will be electronically mailed to: Jeffrey Stewart Whittington jwhittington@kbrlaw.com Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.

20110906

© 1992-2011 VersusLaw Inc.



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