United States District Court, N.D. California
ORDER DISMISSING ACTION FOR FAILURE TO
JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE.
Quentin Pierce filed this Federal Tort Claims Act action in
June 2015. Because Plaintiff has failed to respond to
discovery requests, including his noticed deposition, and
failed to comply with this Court's Orders including an
Order to Show Cause as to why this action should not be
dismissed for failure to prosecute, the Court DISMISSES this
action with prejudice.
the last several months, Defendant has attempted to obtain
discovery from Plaintiff regarding his claims. After
Plaintiff failed to attend the Case Management Conference on
February 16, 2017, the Court issued an Order requiring
Plaintiff to respond to the outstanding written discovery
requests by February 28, 2017 and appear for his deposition
in the Court's Jury Room on March 9, 2017. (Dkt. No. 46.)
Plaintiff was warned that failure to comply with the Order
could result in dismissal of the action under Federal Rule of
Civil Procedure 41(b). On March 8, 2017, Defendant filed a
statement indicating that it had not received any written
discovery responses from Plaintiff. On March 9, 2017,
Plaintiff failed to appear for his deposition in the
Court's Jury Room. (Dkt. No. 51.) The Court thus issued
an Order to Show Cause as to why this action should not be
dismissed pursuant to Federal Rule of Civil Procedure 41(b).
(Dkt. No. 52.) Plaintiff was ordered to provide Defendant
with the written discovery by March 23, 2017 and ordered to
appear and show cause in person on April 6, 2017 as to why
the action should not be dismissed for failure to prosecute
and comply with the Court's orders. Plaintiff was warned
that failure to respond would result in the dismissal of the
action without further notice.
of responding the Court's OSC, Plaintiff left three
voicemails for Defendant's counsel on March 16, 2017.
Plaintiff states that he cannot comply with the discovery
requests and, among other things, in any angry tone uses
profanities and threatens that there will be retaliation.
Defendant shall place a CD of the voicemails in the
Court's record and a transcript is attached to Docket No.
April 6, 2017, Plaintiff failed to appear and has not
otherwise communicated with the Court; further, defense
counsel advised the Court that she had not received the
outstanding written discovery nor heard from Plaintiff.
to Federal Rule of Civil Procedure 41(b), the court may
dismiss an action for failure to prosecute or to comply with
a court order. See Hells Canyon Preservation Council v.
U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005)
(recognizing that a court may sua sponte dismiss an
action pursuant to Rule 41(b)). “A Rule 41(b) dismissal
must be supported by a showing of unreasonable delay.”
Omstead v. Dell, Inc., 594 F.3d 108s1, 1084 (9th
Cir. 2010) (internal citation and quotation marks omitted).
In determining whether a Rule 41(b) dismissal is appropriate,
the court must weigh the following 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.”
Id. (quoting Henderson v. Duncan, 779 F.2d
1421, 1423 (9th Cir. 1986)). Dismissal is appropriate
“where at least four factors support dismissal . . . or
where at least three factors strongly support
dismissal.” Hernandez v. City of El Monte, 138
F.3d 393, 399 (9th Cir. 1998) (internal citation and
quotation marks omitted).
four of the five Henderson factors weigh in favor of
dismissal. “The first two factors-the public interest
in expeditious resolution of litigation and the Court's
need to manage its docket-relate to the “efficient
administration of judicial business for the benefit of all
litigants with cases pending.” Nealey v.
Transportacion Maritima Mexicana, S.A., 662 F.2d 1275,
1279 (9th Cir. 1980). By failing to respond to
Defendant's discovery requests despite being given
multiple opportunities to do so, failing to respond to the
Court's Orders to Show Cause to provide such discovery,
failing to appear for his Court-ordered deposition, and
failing to appear for the Order to Show Cause hearing,
Plaintiff has delayed adjudication of this action.
Non-compliance with procedural rules and the Court's
orders wastes “valuable time that [the Court] could
have devoted to other ... criminal and civil cases on its
docket.” Ferdik v. Bonzelet, 963 F.2d 1258,
1261 (9th Cir. 1992).
the third factor, while “the pendency of the lawsuit is
not sufficiently prejudicial itself to warrant dismissal,
” the delay caused by Plaintiff's failure to
prosecute this action despite the Court's orders weighs
in favor of dismissal. Yourish v. California
Amplifier, 191 F.3d 983, 991 (9th Cir. 1999).
fourth factor is the availability of less drastic sanctions.
The Court twice extended the deadline for Plaintiff to
provide his written discovery responses, and after he failed
to appear for his deposition, the Court gave him the
opportunity to appear and show cause as to why the action
should not be dismissed. Plaintiff did not appear despite
being warned that failure to do so would result in dismissal
of the action without further notice. (Dkt. Nos. 46 &
52.) Thus, the Court has fulfilled its “obligation to
warn the plaintiff that dismissal is imminent.”
Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir.
1992); see also Ferdick, 963 F.2d at 1262 (“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.”). As there appears to be no less drastic
sanction than dismissal now practicably available, the fourth
factor weighs in favor of dismissal.
last factor, which favors disposition on the merits, by
definition weighs against dismissal. Pagtalunan v.
Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (“Public
policy favors disposition of cases on the merits. Thus, this
factor weighs against dismissal.”).
four of the five relevant factors weigh strongly in favor of
dismissing this action in its entirety. See
Pagtalunan, 291 F.3d at 643 (affirming dismissal where
three factors ...