United States District Court, C.D. California
Present: The Honorable JESUS G. BERNAL, UNITED STATES
PROCEEDINGS: ORDER DISMISSING PLAINTIFF LILY
ALAMINA’S COMPLAINT (DOC. NO. 1) WITHOUT PREJUDICE FOR
FAILURE TO PROSECUTE AND COMPLY WITH COURT ORDERS (IN
HONORABLE JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE.
March 11, 2016, Plaintiff Lily Alamina filed a Complaint
against Defendant AAA Roofing by Gene, Inc. (Doc. No. 1.) On
June 15, 2016, the Court issued an Order to Show Cause
(“OSC”), ordering Plaintiff to show cause as to
why she had failed to serve Defendant pursuant to Federal
Rule of Civil Procedure 4(m) and why this action should not
be dismissed without prejudice for failure to prosecute.
(Doc. No. 6.) Plaintiff has failed to respond to the
Court’s OSC. For the reasons set forth below, the Court
DISMISSES Plaintiff’s Complaint without prejudice for
failure to prosecute and comply with Court orders.
well established that district courts have sua
sponte authority to dismiss actions for failure to
prosecute or to comply with court orders. See
Fed.R.Civ.P. 41(b); Omstead v. Dell, Inc., 594 F.3d
1081, 1084 (9th Cir. 2010) (stating standard applied in
dismissal for failure to prosecute); Hells Canyon
Preservation Council v. U.S. Forest Serv., 403 F.3d 683,
689 (9th Cir. 2005) (stating courts may dismiss an action
pursuant to Federal Rule of Civil Procedure 41(b) sua
sponte for a plaintiff’s failure to prosecute or
comply with the Federal Rules of Civil Procedure or the
court’s orders); Ferdik v. Bonzelet, 963 F.2d
1258, 1260 (9th Cir. 1992) (ordering dismissal for failure to
comply with court orders).
deciding whether to dismiss for failure to prosecute or
comply with court orders, a district court must consider five
factors: “‘(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 the
defendants; (4) the public policy favoring disposition of
cases on their merits; and (5) the availability of less
drastic sanctions.’” Omstead, 594 F.3d
at 1084 (quoting Henderson v. Duncan, 779 F.2d 1421,
1423 (9th Cir. 1986)).
the first two factors -- public interest in expeditious
resolution of litigation and the court’s need to manage
its docket -- weigh in favor of dismissal. Plaintiff has
neither served Defendant nor responded to the Court’s
OSC. This failure to prosecute and follow court orders
hinders the Court’s ability to move this case toward
disposition, and suggests Plaintiff does not intend to
litigate this action diligently.
third factor -- prejudice to defendants -- also weighs in
favor of dismissal. A rebuttable presumption of prejudice to
defendants arises when a plaintiff unreasonably delays
prosecution of an action. See In re Eisen, 31 F.3d
1447, 1452-53 (9th Cir. 1994). Nothing suggests such a
presumption is unwarranted in this case.
fourth factor -- public policy in favor of deciding cases on
the merits -- ordinarily weighs against dismissal. However,
it is a plaintiff’s responsibility to move towards
disposition at a reasonable pace, and avoid dilatory and
evasive tactics. See Morris v. Morgan Stanley, 942
F.2d 648, 652 (9th Cir. 1991). Plaintiff has not discharged
this responsibility despite having been: (1) instructed on
her responsibilities; (2) granted sufficient time in which to
discharge them; and (3) warned of the consequences of failure
to do so. (See Doc. No. 6.) Under these
circumstances, the policy favoring resolution of disputes on
the merits does not outweigh Plaintiff’s failure to
obey court orders or to file responsive documents within the
fifth factor -- availability of less drastic sanctions --
also weighs in favor of dismissal. The Court cannot move the
case toward disposition without Plaintiff’s compliance
with court orders or participation in this litigation.
Plaintiff has shown she is either unwilling or unable to
comply with court orders by filing responsive documents or
otherwise cooperating in prosecuting this action.
while dismissal should not be entered unless a plaintiff has
been notified dismissal is imminent, see West Coast
Theater Corp. v. City of Portland, 897 F.2d 1519, 1523
(9th Cir. 1990), the Court has warned Plaintiff about the
possibility of dismissal. (See Doc. No. 6.) Hence,
dismissal of the Complaint for Plaintiff’s failure to
prosecute and comply with court orders is warranted here.
Plaintiff’s Complaint is DISMISSED without prejudice
for failure to ...