United States District Court, S.D. California
ORDER OF DISMISSAL
LARRY ALAN BURNS, United States District Judge
claims in this case arose from the fatal shooting in 2014 of
Mark Anthony Ayala by agents of the Imperial County Narcotics
Task Force. Plaintiffs, Ayala's heirs and family members,
are represented by counsel. A related case, Lerma-Mayoral
v. City of El Centro, 15cv818-LAB (PCL), deals with
claims by the driver of the taxi in which Ayala was riding
when he was shot. That case is in discovery.
case, the only remaining Defendant is the County of Imperial.
Judgment has already been entered in favor of the other
Defendants. (See Docket no. 44.) The only surviving
claim is based on allegations that the County was responsible
for the Task Force's violations under a Monell
theory. See Monell v. Dept. of Soc. Servs., 436 U.S.
658 (1978). All other claims have been either abandoned or
Task Force consists of officers from various government
entities, including the County, and is itself a federal
entity. So far, Plaintiffs have been unable to allege any
facts that would suggest the County is responsible for the
Task Force's customs or policies. To the contrary,
everything Plaintiffs have submitted suggests that either the
federal government or the entity itself is responsible for
its customs and policies. There is no reason to believe
Plaintiffs can successfully amend to salvage their remaining
claim. By noon on May 2, Plaintiffs' counsel were to have
filed an ex parte motion for leave to file a second
amended complaint. (See Docket no. 49.) But they
have allowed that deadline to pass and have filed nothing.
This action is therefore subject to dismissal both for
failure to prosecute and on the merits.
are represented by two attorneys, who have missed deadlines
and repeatedly disobeyed local rules and the Court's
orders. Among the most frustrating of counsel's many
lapses has been their repeated failure to register for
electronic filing and to file documents electronically, as is
required of all attorneys practicing before this Court. They
have ignored numerous warnings about their violations.
(See Docket nos. 2, 11, 19, 21, 23, 32, 34, 36, 45,
46 (warning Plaintiffs' counsel of Civil Local Rule 5.4
violations, and cautioning them regarding the consequences).)
Their failure to file documents electronically has caused
chaos in the docket, resulting in the vacatur of two previous
dismissals. Plaintiffs' counsel were warned that if this
action were dismissed a third time, the third dismissal would
not be vacated. (Docket no. 42 at 9:9-11.)
effort to impose order, the Court on March 8 required both
Plaintiffs' attorneys to register for electronic filing,
and each was ordered to confirm that the other had registered
as required. (See Docket no. 37 at 3:8-15.)
Nevertheless, attorney Goodman continued to try to submit
paper copies of documents. These included a motion for leave
to amend that was essentially a rehash of the one he filed on
March 16, which had been denied on the merits.
April 28, the Court specifically ordered Plaintiffs'
counsel to electronically file their motion for leave to
amend by noon on Tuesday, May 2, 2017, and said that no more
extensions would be granted. (Docket no. 49.) This was the
latest in a string of stern warnings to Plaintiffs'
counsel. (See also Docket nos. 37, 38, 42, 49
(orders pointing out Plaintiffs' counsel's violation
of rules and orders, and giving increasingly serious
cautions).) May 2 has come and gone, and Plaintiffs have
Court therefore deems Plaintiffs' remaining claim
abandoned. The Court recognizes that dismissal is a sanction
of last resort. Nevertheless, in light of Plaintiffs'
counsel's refusal or inability to move forward with the
case in spite of numerous warnings, dismissal is the only
reasonable option. See Thompson v. Housing Auth.,
782 F.2d 829, 831-32 (9th Cir. 1986) (per curiam).
explained in detail in the Court's March 21 order,
Defendants have already been unfairly surprised and burdened
several times by Plaintiffs' counsel's disobedience
of the Court's orders and the local rules. (Docket no. 42
at 7:19-9:11.) If the case is permitted to linger on the
docket, the County is very likely to continue to suffer such
unfair prejudice. Plaintiffs' counsel have also wasted
judicial resources, created needless emergencies, usurped
control of the docket, and improperly sought special
indulgences from the Court. (Id.) Plaintiffs'
counsel were specifically warned that lesser attempts to
impose order had been unsuccessful, and that if they
continued their disobedience, dismissal appeared to be the
only remaining option. (Id. at 9:6-10.)
the Court is mindful of the public policy favoring
disposition of the cases on the merits, see Thompson
at 831 (citing Henderson v. Duncan, 779 F.2d 1421,
1423-24), Plaintiffs have escaped dismissal twice already on
the basis of that policy, and the case is no closer to
resolution. Lesser methods of persuasion have proved to be in
vain. At some point, trying to resolve a case on the merits
becomes impractical, and the Court finds that in this case
that time has come. Without finality, Defendants will be
unfairly prejudiced and the public interest will not be
served. See Ellis v. Dyson, 421 U.S. 426, 440 n.6
(1975) (noting the “powerful public interest in
finality of litigation”); Fed.R.Civ.P. 1 (the rules
“should be construed, administered, and employed by the
court and the parties to secure the just, speedy, and
inexpensive determination of every action and
proceeding”). Considering the factors set forth in
Thompson, 782 F.2d at 831, the Court finds that
dismissal is appropriate.
it does not appear that dismissing Plaintiffs' claim
based on their attorneys' neglect of the case is unfair.
The chance of their showing that the County is responsible
for the Task Force's policies is remote. Without that,
they cannot prevail. In all likelihood, Plaintiffs'
counsel have recognized that their clients have no claim, and
they have chosen not to amend because they realize they
cannot do so successfully.
action is DISMISSED WITHOUT PREJUDICE, BUT WITHOUT LEAVE TO
AMEND, for failure to prosecute, and for disobedience to the
rules and to the Court's orders. See Fed. R.
Civ. P. 41(b); 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 for failure to prosecute or to comply with applicable
rules or the court's orders). Finally, even if the case
were not being dismissed for those reasons, the Court finds
it would be subject to dismissal on the merits, because
Plaintiffs have never successfully stated a claim even after
being given multiple opportunities to do so.