United States District Court, C.D. California
ORDER DISMISSING ACTION WITHOUT PREJUDICE
Fernando M. Olguin United States District Judge
to the Court's Order of November 29, 2016 (Dkt. 17), the
court granted defendants' motion to dismiss, and
plaintiff was “granted until December 15, 2016, to file
a first amended complaint[.]” (See id. at 2).
Plaintiff did not file anything for more than six months and,
on June 12, 2017, the court gave plaintiff one final
opportunity to file a first amended complaint. (See
Dkt. 21, Court's Order of June 12, 2017, at 1-2). The
court cautioned plaintiff that “failure to timely file
a First Amended Complaint may result in this action being
dismissed without prejudice for failure to prosecute and/or
failure to comply with a court order.” (Id. at
2). As of the filing date of this Order - approximately seven
months later - plaintiff has not filed a first amended
complaint or otherwise responded to the Court's Orders of
November 29, 2016 or June 12, 2017. (See,
district court's authority to dismiss a litigant's
claims for failure to prosecute or to comply with court
orders is well-established. See Fed.R.Civ.P.
41(b); Link v. Wabash R.R. Co., 370
U.S. 626, 629-30, 82 S.Ct. 1386, 1388 (1962) (“The
authority of a federal trial court to dismiss a
plaintiff's action with prejudice because of his failure
to prosecute cannot seriously be doubted.”); Ferdik
v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert.
denied, 506 U.S. 915 (1992). “The power to invoke
this sanction is necessary in order to prevent undue delays
in the disposition of pending cases and to avoid congestion
in the calendars of the District Courts.”
Link, 370 U.S. at 629-30, 82 S.Ct. at 1388.
district court may dismiss a plaintiff's complaint
pursuant to Rule 41(b) when plaintiff fails to amend the
complaint or file a notice of intent not to amend the
complaint. See Edwards v. Marin Park, Inc.,
356 F.3d 1058, 1065 (9th Cir. 2004) (reversing dismissal of
action when plaintiff timely filed a notice of intent not to
amend); Yourish v. California Amplifier, 191 F.3d
983, 989 (9th Cir. 1999) (affirming dismissal for failure to
file an amended complaint or notice of intent);
Ferdik, 963 F.2d at 1261 (same). In other words,
“[t]he failure of the plaintiff eventually to respond
to the court's ultimatum - either by amending the
complaint or by indicating to the court that it will not do
so - is properly met with the sanction of a Rule 41(b)
dismissal.” Edwards, 356 F.3d at 1065
(“a threatened Rule 12(b)(6) dismissal  ferment[s]
into a Rule 41(b) dismissal only upon a plaintiff's
inaction”) (emphasis in original). Here,
plaintiff has neither filed an amended complaint nor a notice
of intent not to amend the complaint. (See,
determining whether to dismiss plaintiff's Complaint
pursuant to Rule 41(b), the court considers the following
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
defendants/respondents; (4) the availability of less drastic
alternatives; and (5) the public policy favoring disposition
of cases on their merits.” Pagtalunan v.
Galaza, 291 F.3d 639, 642 (9th Cir. 2002), cert.
denied, 538 U.S. 909 (2003). “Although it is
preferred, it is not required that the district court make
explicit findings in order to show that it has considered
these factors and [the Ninth Circuit] may review the record
independently to determine if the district court has abused
its discretion.” Ferdik, 963 F.2d at 1261.
first factor, the public's interest in the expeditious
resolution of litigation, “always favors
dismissal.” Pagtalunan, 291 F.3d at 642;
see Yourish, 191 F.3d at 990 (“Given the
district court's superior position in evaluating the
public interest in expeditious resolution of a particular
case,  this factor strongly favors dismissal.”);
see also In re Phenylpropanolamine (PPA) Prods. Liab.
Litig., 460 F.3d 1217, 1234 (9th Cir. 2006)
(“[D]ismissal serves the public interest in expeditious
resolution of litigation as well as the court's need to
manage the docket when a plaintiff's noncompliance has
caused the action to come to a halt, thereby allowing the
plaintiff, rather than the court, to control the pace of the
second factor, the court's need to manage its docket,
also favors dismissal. See Pagtalunan, 291 F.3d at
642 (holding that this factor weighed in favor of dismissal
where the petition “consumed some of the court's
time that could have been devoted to other cases on the
docket”); Edwards, 356 F.3d at 1065 (noting
that where a plaintiff does not act, “resources
continue to be consumed by a case sitting idly on the
court's docket”). Here, plaintiff's
“failure to amend ha[s] caused the action to come to a
complete halt and ha[s] allowed the Plaintiff to control
the pace of the docket rather than the Court.”
Yourish, 191 F.3d at 990 (internal quotation marks
third factor, prejudice to defendants, also favors dismissal.
In the absence of a showing to the contrary, prejudice to a
defendant is presumed from unreasonable delay. See In re
Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994)
(“This rebuttable presumption of prejudice refutes . .
. [the] contention that delay alone, regardless of actual
prejudice, does not necessitate a dismissal for failure to
prosecute.”) (internal quotation marks omitted);
Henderson v. Duncan, 779 F.2d 1421, 1425 (9th Cir.
1986) (“[A]lthough no specific showing of prejudice to
defendants is made, the integrity of the district court is
involved.”). Here, the court granted plaintiff leave to
file an amended complaint more than six months ago,
(see Dkt. 17, Court's Order of November 29,
2016, at 1-2), and recently gave plaintiff one more
opportunity to file an amended complaint. (See Dkt.
21, Court's Order of June 12, 2017, at 1-2). Despite
these accommodations, plaintiff failed to file a first
amended complaint or notice of intent not to amend, which has
prevented the court from moving the case forward.
fourth factor, the availability of less drastic sanctions,
also favors dismissal. “[A] district court's
warning to a party that his failure to obey the court's
order will result in dismissal can satisfy the consideration
of alternatives requirement.” Ferdik, 963 F.2d
at 1262 (internal quotation marks omitted). Here, considering
the multiple opportunities the court provided plaintiff to
enable him to prosecute the action, (see Dkt. 17,
Court's Order of November 29, 2016, at 1-2; Dkt. 21,
Court's Order of June 12, 2017, at 1-2), and given that
the case has been at a standstill for nearly seven months,
the court is persuaded that dismissing the action is the most
appropriate sanction. See Anderson v. Air West,
Inc., 542 F.2d 522, 525 (9th Cir. 1976) (“There is
no requirement that every single alternate remedy be examined
by the court before the sanction of dismissal is appropriate.
The reasonable exploration of possible and meaningful
alternatives is all that is required.”).
fifth factor, the public policy favoring disposition of
claims on their merits, weighs against dismissal. See
Pagtalunan, 291 F.3d at 643. However, despite the policy
favoring disposition on the merits, it remains
plaintiff's responsibility to prosecute and move the case
towards a final disposition. See In r e Eisen, 31
F.3d at 1454 (litigant has a responsibility “to move
towards that disposition at a reasonable pace, and to refrain
from dilatory and evasive tactics.”). Plaintiff has not
fulfilled that responsibility here.
five-factor test for dismissal under Rule 41(b) is a
disjunctive balancing test, so not all five factors must
support dismissal for the court to grant defendants'
Motion. See Valley Eng'rs Inc. v. Elec. Eng'g
Co., 158 F.3d 1051, 1057 (9th Cir. 1998), cert.
denied, 526 U.S. 1064 (1999) (noting that the
five-factor test “amounts to a way for a district judge
to think about what to do, not a series of conditions
precedent” to dismissal); Hernandez v. City of El
Monte, 138 F.3d 393, 399 (9th Cir. 1998) (the Ninth
Circuit “may affirm a dismissal where at least four
factors support dismissal, or where at least three factors
strongly support dismissal.”) (internal quotation marks
and citations omitted). Here, four of the five factors
support dismissal of action. Thus, the remaining question is
whether the dismissal should be with or without prejudice.
See Fed.R.Civ.P. 41(b); Al-Torki v.
Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996);
Yourish, 191 F.3d at 992 (“allowing the
plaintiff to replead is  a less drastic alternative to
dismissal [with prejudice] once [plaintiff] has  disobeyed
a court order”). Under the circumstances, the court
finds that plaintiff's claims should be dismissed without
even assuming plaintiff's action was not being dismissed
pursuant to Rule 41(b), the court, having evaluated the
arguments set forth in the briefing, is persuaded that the
Motion should be granted on the merits. Under Rule 12(b)(6),
a motion to dismiss should be granted if the plaintiff fails
to proffer “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007).
Here, the court finds merit to defendants' contention
that the court lacks jurisdiction because defendants
“hired [a] licensed CASp inspector  to perform a CASp
inspection of the entire shopping center where
[defendants' restaurant] is located[.]” (Dkt. 13-1,
Defendants' Motion to Dismiss at 3). Defendants
“immediately began efforts to remediate all ADA
non-compliance  and in fact completed those repairs.”
(Id.). “As a result, the parking area
contained clearly marked signage and parking, as well as
proper access ramps for disabled persons.”
on the foregoing, IT IS ORDERED THAT the above-captioned case
is dismissed without prejudice. ...