United States District Court, C.D. California
ORDER DISMISSING COMPLAINT WITHOUT PREJUDICE FOR
FAILURE TO PROSECUTE
A. KRONSTADT DISTRICT JUDGE
October 25, 2016, Plaintiff filed a civil rights complaint.
On February 28, 2017, Defendant filed a status report.
Defendant notified the court that Plaintiff had been released
from Orange County jail on December 19, 2016 and that
Defendant had been unable to conduct discovery without a
current address for Plaintiff. (Dkt. No. 11.) Plaintiff
failed to file a status report by March 1, 2017 as ordered by
the court. (Dkt. No. 9.)
March 16, 2017, the Magistrate Judge issued an order to show
cause by April 17, 2017, why this case should not be
dismissed for failure to prosecute. The order provided that
the filing of a status report by April 17, 2017 would be
deemed compliance with the order to show cause, and warned
that failure to file a timely status report may result in
dismissal. (Dkt. No. 12.)
April 3, 2017, the postal service returned the order to show
cause as undeliverable and unable to forward to Plaintiff.
(Dkt. No. 13.) Plaintiff has not filed a notice of change of
address or status report, and has not otherwise responded to
the order to show cause.
proceeding pro se is required to keep the court
apprised of his or her current address. Local Rule 41-6.
“If mail directed by the Clerk to a pro se
plaintiff's address of record is returned undelivered by
the Postal Service, and if, within fifteen (15) days of the
service date, such plaintiff fails to notify, in writing, the
Court and opposing parties of said plaintiff's current
address, the Court may dismiss the action with or without
prejudice for want of prosecution.” Petitioner has
failed to file a notice of change of address, and his current
address is unknown.
well established that a district court has authority to
dismiss a plaintiff's action because of failure to
prosecute or to comply with court orders. See Fed.
R. Civ. P. 41(b); Link v. Wabash Railroad Co., 370
U.S. 626, 629-30, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)
(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) (district court may dismiss action for
failure to comply with any order of the court).
determining whether to dismiss a case for failure to
prosecute or failure to comply with court orders, a district
court should 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
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).
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. Plaintiff has
failed to file a status report and has failed to respond to
the court's order to show cause why this action should
not be dismissed for failure to prosecute. Plaintiff has
failed to file a notice of change of address and has thereby
rendered it impossible for Defendant to conduct discovery.
Plaintiff's conduct hinders the court's ability to
move this case toward disposition, and indicates that
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 there is a failure to prosecute
diligently. Eisen, 31 F.3d at 1452-53. That
presumption may be rebutted when a plaintiff proffers an
excuse for delay. Plaintiff 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, however, a
plaintiff's responsibility to move a case towards a
disposition at a reasonable pace and to avoid dilatory
tactics. See Morris v. Morgan Stanley Co., 942 F.2d
648, 652 (9th Cir. 1991). Plaintiff has not discharged this
responsibility. In these circumstances, the public policy
favoring resolution of disputes on the merits does not
outweigh Plaintiff's failure to notify the court of his
change of address or respond to orders of the court.
fifth factor - availability of less drastic sanctions -
weighs in favor of dismissal. The court attempted to avoid
dismissal by reminding Plaintiff of his obligation to file a
status report and expressly warned Plaintiff that failure to
comply may result in the dismissal of the action. The mail
was returned as undeliverable because Plaintiff has failed to
keep the court apprised of his current address. See Carey
v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (“It
would be absurd to require the district court to hold a case
in abeyance indefinitely just because it is unable, through
the plaintiffs own fault, to contact the plaintiff to
determine if his reasons for not prosecuting his lawsuit are
reasonable or not.”).
all of the above factors into account, dismissal for failure
to prosecute is appropriate. Such a dismissal, however,
should not be entered unless Plaintiff has been notified that
dismissal is imminent. In this case, the order to show cause
cautioned Plaintiff about the possibility of dismissal.
Absent a current address for Plaintiff, there is nothing more
the court can do.
ORDERED that judgment be entered dismissing the case without