United States District Court, N.D. California
ORDER DISMISSING CASE
M. CHEN UNITED STATES DISTRICT JUDGE
March 8, 2016, Plaintiff Kenneth James Maxwell, Jr. filed the
instant lawsuit against Defendant Michael Underhill, alleging
three claims: (1) “Abridging the Freedom of Speech,
” (2) Abriding the Freedom “of the Press, ”
and (3) “Petition the Government for a Redress of
Grievances.” Docket No. 1 (Compl.). Mr. Maxwell also
filed an application to proceed in forma pauperis.
Docket No. 2. Because Mr. Maxwell stated only minimal factual
allegations, including no facts regarding Mr. Underhill,
Judge James issued a report and recommendation, recommending
that the Court exercise its duty to dismiss a case proceeding
in forma pauperis where the complaint fails to state
a claim on which relief may be granted. Docket No. 7
(R&R). On April 19, 2016, the Court adopted Judge
James's report and recommendation and dismissed Mr.
Maxwell's complaint, with leave to file an amended
complaint by May 23, 2016. Docket No. 12 (Ord.).
Maxwell was served with the Court's Order at his San
Francisco address; however, the Court's mailings have
been returned as undeliverable. See Docket Nos. 13,
15, 16. Around May 10, 2016, Mr. Maxwell informed the Court
of a new Los Angeles address, and the Court mailed a copy of
the Order to the updated address. Docket No. 14. Around June
6, 2016, Mr. Maxwell told the Court he had not received the
Court's Order, but that he had mailed an amended
complaint; however, the Court never received the amended
complaint. See Docket No. 18. The Court issued a
clerk's notice, stating that Mr. Maxwell would have until
June 17, 2016 to file his amended complaint with the Court.
Id. The Court's Order adopting Judge James's
report and recommendation and the clerk's notice were
delivered to Mr. Maxwell's Los Angeles address. Docket
No. 18-1. No amended complaint was filed.
22, 2016, the Court issued an Order requiring Mr. Maxwell to
file an amended complaint by July 8, 2016, and warned that
failure to file an amended complaint will result in dismissal
of the complaint with prejudice for failure to prosecute.
Docket No. 20. The Court again included a copy of Judge
James's report and recommendation and the Court's
Order adopting Judge James's report and recommendation.
Id. at 2. This Order was sent to Mr. Maxwell's
Los Angeles address. Docket No. 20-1.
the Court has not received an amended complaint as of July
18, 2016, the Court DISMISSES WITH PREJUDICE Mr.
Maxwell's complaint, for failure to prosecute.
district court may sua sponte dismiss an action for failure
to prosecute or to comply with a court order pursuant to
Federal Rule of Civil Procedure 41(b). See Link v. Wabash
RR, 370 U.S. 626, 633 (1962); McKeever v.
Block, 932 F.2d 795, 797 (9th Cir. 1991). Such a
dismissal should only occur when the failure to comply is
unreasonable. Id.; see also Edwards v. Marin
Park Inc., 356 F.3d 1058, 1065 (9th Cir. 2004)
(dismissal under Rule 41(b) proper when plaintiff, given the
opportunity to amend or be dismissed, did nothing; but
dismissal improper when plaintiff made affirmative choice not
to amend and clearly communicated that choice to court
because there has been no disobedience to a court's order
and plaintiff has right to stand on the pleading).
Court considers five factors before dismissing an action
under Rule 41(b): (1) the public interest in the expeditious
resolution of the litigation: (2) the court's need to
manage its docket; (3) the risk of prejudice to the
defendants; (4) the availability of less drastic sanctions;
and (5) the public policy favoring the disposition of actions
on their merits. See Malone v. United States
Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987);
Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.
1986). It should also afford the litigant prior notice of its
intention to dismiss. Malone, 833 F.2d at 133.
Court finds that the public's interest in expeditious
litigation and the court's need to manage the docket is
served by dismissal. Mr. Maxwell's amended complaint was
originally due on May 23, 2016, but an amended complaint has
still not been filed nearly two months past this original
deadline. As to the third factor, the Ninth Circuit has found
that “actual prejudice to a defendant is not required,
as '[t]he failure to prosecute diligently is sufficient
by itself to justify a dismissal, even in the absence of a
showing of actual prejudice to the defendant from the
failure.'” Navarro-Covert r. R.J. Reynolds,
Inc., No. 09-6086 EMC, 2012 U.S. Dist. LEXIS 22371, at
*8 (N.D. Cal. Feb. 24, 2012) (quoting Anderson v. Air W.,
Inc., 542 F.2d 522, 524 (9th Cir. 1976)).
respect to the fourth factor, the Court has already tried
less drastic alternatives. “A district court's
warning to a party that failure to obey the court's order
will result in dismissal can satisfy the consideration of
less drastic sanctions requirement.” Libby v.
Colvin, No. C14-2279 EMC, 2015 U.S. Dist. LEXIS 1052, at
*3 (N.D. Cal. Jan. 6, 2015) (internal quotation omitted).
Here, after Mr. Maxwell's initial failure to comply with
the Court's order, the Court twice extended the deadline
to file a complaint, which Mr. Maxwell has still not complied
with. In its June 22, 2016 Order, the Court specifically
warned that it would dismiss the instant action with
prejudice if an amended complaint was not filed by July 8,
2016. See Docket No. 20 at 2. Further, less drastic
alternatives, such as evidentiary or monetary sanctions,
would likely be ineffective given Mr. Maxwell's failure
to prosecute this case from the beginning as well as his
in forma pauperis status. See, e.g.,
Ervin v. Bank of Am., N.A., No. 2:12-cv-1595 KJM KJN
PS, 2013 U.S. Dist. LEXIS 64000, at *11 (E.D. Cal. May 3,
2013) (finding no suitable alternative to dismissal of the
action given that “plaintiff is proceeding in forma
pauperis and thus would very likely be unable to pay any
monetary sanction imposed in lieu of dismissal”).
while the public policy favoring disposition of cases on
their merits always counsels against dismissal for failure to
prosecute, the Court finds this factor outweighed by the
considerations discussed above.
the Court DISMISSES WITH PREJUDICE this action for failure to
prosecute. The Clerk is instructed to ...