United States District Court, C.D. California
Present: The Honorable DALE S. FISCHER, United States
IN CHAMBERS ORDER TO SHOW CAUSE RE DISMISSAL FOR
FAILURE TO PROSECUTE AND FAILURE TO COMPLY WITH COURT
Honorable DALE S. FISCHER, United States District Judge
Court has authority to dismiss an action for failure to
prosecute in order to ensure “the orderly and
expeditious disposition of cases.” Link v. Wabash
Railroad Co., 370 U.S. 626, 631 (1962) (noting that Rule
41(b) of the Federal Rules of Civil Procedure expressly
recognizes this power). In determining whether dismissal for
lack of prosecution is proper, the Court weighs several
factors, including: (1) the public’s interest in
expeditious resolution of litigation, (2) the Court’s
need to manage its docket, (3) the risk of prejudice to
Defendant, (4) the availability of less drastic sanctions,
and (5) the public policy favoring the disposition of cases
on their merits. Pagtalunan v. Galaza, 291 F.3d 639,
642 (9th Cir. 2002); Ferdik v. Bonzelet, 963 F.2d
1258, 1260-61 (9th Cir. 1992) (recognizing court’s
inherent power to control its docket by dismissal, where
appropriate); see also Carey v. King, 856 F.2d 1439,
1440 (9th Cir. 1988) (noting factors to be weighed before
dismissing an action for lack of prosecution included
public’s interest in expeditious resolution of
litigation and court’s need to manage its docket).
of this case without prejudice is warranted under Rule 41(b).
On March 19, 2015, the Court set a Scheduling Conference for
June 1, 2015 at 11:00 a.m. Because the parties had cooperated
in suggesting dates for various pre-trial matters and a trial
date, the Court set those dates and vacated the Conference.
The Court’s Order re Jury Trial was issued on May 26,
2015. The Order established the dates set by the parties for
all pretrial matters. It set the last day to participate in
alternative dispute resolution as February 18, 2016, a
pretrial conference date of July 25, 2016, and a trial date
of August 23, 2016.
December 15, 2015, the Court granted the motion by
plaintiff’s counsel to be relieved as attorney of
record. A mediation completion date was set for May 30, 2016.
Although an initial conference was held via telephone on
August 20, 2015, the parties never complied with the Court
parties were ordered to file their Memo of Contentions of
Fact and Law, Exhibit and Witness Lists, Motions in Limine
and a Status Report re settlement negotiations by July 1,
2016. However, no documents have been filed. In addition, the
parties were ordered to lodge their Pretrial Conference
Order, an Agreed Set of Jury Instructions and Verdict Forms,
a Statement Regarding Disputed Instructions and Verdicts by
July 11, 2016. Again, no documents have been filed.
failure to pursue this action, despite the Court’s
orders, necessarily implicates both the first and second
factors, i.e., the public’s interest in expeditious
resolution of litigation and the Court’s need to manage
its docket efficiently. Pagtalunan, 291 F.3d at 642.
Indeed, Plaintiff’s noncompliance - in the absence of a
dismissal - would “allow Plaintiff to control the
pace of the docket rather than the Court.” Yourish
v. California Amplifier, 191 F.3d 983, 990 (9th Cir.
1999) (internal quotation marks omitted). As to the third
factor, there is little obvious prejudice to Defendant at
this time, other than the delay in the proceedings so near to
trial, and the time and fees that would be required to attend
a pretrial conference that would necessarily have to be
continued for Plaintiff’s failure to provide the
respect to the fourth factor, i.e., the availability of less
drastic alternatives, the Court could offer Plaintiff another
opportunity to comply with its orders but there is nothing in
this record to suggest that he would do so.
fifth factor to be considered, i.e., the preference for
resolving cases on the merits, favors the continuation of
this case. The Court would prefer to resolve the case on the
merits, but, if Plaintiff will not cooperate, this cannot be
done. Thus, dismissal pursuant to Rule 41(b) appears
warranted. See Ferdik, 963 F.2d at 1263 (finding
dismissal appropriate where supported by three factors).
Nevertheless, considering Plaintiff’s pro se
status, and his noncompliance, the Court will only
conditionally dismiss the case without prejudice for failure
to prosecute and failure to comply with Court orders. The
Court will reinstate the action and set a pretrial conference
date if - no later than August 1, 2016, Plaintiff cooperates
with defense counsel to choose a mediator and schedule a
mediation at a mutually convenient time, and submits a
proposed pretrial conference order, verdict form, and a
memorandum of contentions of fact and law.
to the Court’s Order re Jury Trial, failure to submit
jury instructions has waived Plaintiff’s right to a
jury trial.) ...