United States District Court, C.D. California
Present: The Honorable MICHAEL W. FITZGERALD, U.S. District
Judge Deputy Clerk: Court Reporter:
(In Chambers): ORDER DISMISSING ACTION FOR FAILURE TO COMPLY
WITH A COURT ORDER
February 17, 2016, Mr. Ford initiated this action against
four Defendants: Chancellor Bernard Luskin, Ventura County
Community College District (the “District”),
Michael Shanahan, and Larry Kennedy. On the same day, Mr.
Ford filed a Proof of Service, indicating that he served the
Complaint on Defendant Luskin and the District through
certified mail. (Proof of Service at 1 (Docket No. 2)).
9, 2016, the Court entered an Order re: Proof of Service (the
“OSC”) giving Mr. Ford until May 31, 2016, to
effect proper service on all Defendants named in this action.
(Docket No. 18). This was an extension of the time provided
for in Rule 4(m) of the Federal Rules of Civil Procedure. The
Court warned Mr. Ford that if he did not file proper proof of
service by May 31, 2016, the action would be dismissed with
Ford instead filed motions for reconsideration, for a
replacement judge, and to disqualify the Court. The various
motions were denied. Mr. Ford appealed from the Order denying
the motion for a replacement judge. (Docket Nos. 27, 29-31).
While the appeal was pending, Mr. Ford filed two requests for
entry of default. (Docket Nos. 33, 35). On January 4, 2017,
the Ninth Circuit dismissed the appeal. (Docket No. 41). Mr.
Ford has since filed two Motions for Default Judgment with
the Court. (Docket Nos. 39, 42).
are yet to appear in this action, and Mr. Ford has yet to
file proper proof of service in accordance with Federal Rule
of Civil Procedure 4 and this Court's OSC.
well-established that a district court has authority to
dismiss a plaintiff's action due to her failure to
prosecute and/or to comply with court orders. See
Fed. R. Civ. P. 41(b); Link v. Wabash Railroad Co.,
370 U.S. 626, 629-30 (1962) (noting that district court's
authority to dismiss for lack of prosecution is necessary to
prevent undue delays in the disposition of pending cases and
avoid congestion in district court calendars); Ferdik v.
Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (stating
that district court may dismiss action for failure to comply
with any order of the court).
ordering dismissal, the 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 Defendant; (4) the public policy
favoring the disposition of cases on their merits; and (5)
the availability of less drastic sanctions. See In re
Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (failure to
prosecute); Ferdik, 963 F.2d at 1260-61 (failure to
comply with court orders).
the first two factors - the public's interest in
expeditious resolution of litigation and the Court's need
to manage its docket - weigh in favor of dismissal. Mr. Ford
has failed even to notify properly the individuals against
whom he now requests default judgment. He has dragged his
feet in prosecuting this action and has disregarded the
Court's explicit instructions set forth in the OSC. Mr.
Ford's conduct hinders the Court's ability to move
this case toward disposition and indicates that Plaintiff
does not intend to litigate diligently.
third factor - prejudice to the putative Defendants - also
weighs in favor of dismissal. A rebuttable presumption of
prejudice arises when there is a failure to prosecute the
action. Eisen, 31 F.3d at 1452-53. That presumption
may be rebutted where a plaintiff proffers an excuse for
delay. Mr. Ford has failed to come forward with any excuse or
reason for delay.
fourth factor - public policy in favor of deciding cases on
their merits - weighs against dismissal. It is Mr. Ford's
responsibility, however, to move the action toward resolution
at a reasonable pace and to avoid dilatory tactics. See
Morris v. Morgan Stanley Co., 942 F.2d 648, 652 (9th
Cir. 1991). Mr. Ford has failed to discharge his
responsibility. In these circumstances, the public policy
favoring resolution of disputes on the merits does not
outweigh Mr. Ford's failure to prosecute.
fifth factor - availability of less drastic sanctions -
weighs in favor of dismissal. The Court has attempted to
avoid outright dismissal by issuing the OSC and providing Mr.
Ford an opportunity to explain why this matter should proceed
despite significant delay. Mr. Ford has not complied with the
OSC and ignored the Court's explicit warning that
“[i]f a Defendant is not properly served or if the
proof of service is not filed by May 31, 2016, then the
claims against that Defendant will be dismissed with
prejudice.” (OSC at 2); see also Henderson v.
Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (“The
district court need not exhaust every sanction short of
dismissal before finally dismissing a case, but must explore
possible and meaningful alternatives.”). Mr. Ford has
had nine months to serve the Defendants properly; the Court
has no indication that, if given yet another extension, Mr.
Ford would finally execute proper service.
all of the above factors into account, dismissal for failure
to prosecute and failure to comply with the OSC is
appropriate. Accordingly, the action is DISMISSED with
Order shall constitute notice of entry of judgment pursuant
to Federal Rule of Civil Procedure 58. Pursuant to Local Rule
58-6, the Court ORDERS the Clerk to treat this Order, ...