United States District Court, N.D. California
ORDER DISMISSING CASE FOR FAILURE TO
JACQUELINE SCOTT CORLEY, UNITED STATES MAGISTRATE JUDGE.
Plaintiff filed this personal injury action against Defendant
JP Morgan Chase Bank, N.A., in the Superior Court for the
County of San Francisco on June 19, 2017. (Dtk. No. 1-1.)
Defendant thereafter removed the action to this Court based
on diversity jurisdiction under 28 U.S.C. § 1332. (Dkt.
No. 1.) Defendant then moved to dismiss the complaint for
failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). (Dkt. No. 7.) Plaintiff failed to file an
opposition to the motion to dismiss and the Court ordered her
to show cause as to why this action should not be dismissed
for failure to prosecute under Federal Rule of Civil
Procedure 41(b). (Dkt. No. 12.) Plaintiff was given until
October 27, 2017 to show cause and simultaneously file her
opposition or statement of non-opposition to the motion to
dismiss. To date, Plaintiff has neither filed a response to
the order to show cause nor the motion to
dismiss. Accordingly, this action is DISMISSED
without prejudice for failure to prosecute based on
Plaintiff's failure to respond to the pending motion to
dismiss and this Court's Order to Show Cause.
See Fed. R. Civ. P. 41(b).
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 1081, 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 the motion to
dismiss and the Court's Order to Show Cause, 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.
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). The fourth
factor is the availability of less drastic sanctions. The
Court already cautioned Plaintiff that failure to respond
would result in dismissal of this action. (Dkt. No. 8.) 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.”). The fourth factor thus weighs in favor
of dismissal. The 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
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 favored dismissal, while two factors weighed
reasons stated above, this action is DISMISSED without
IS SO ORDERED.
undersigned, hereby certify that I am an employee in the
Office of the Clerk, U.S. District Court, Northern District
November 8, 2017, I SERVED a true and correct copy(ies) of
the attached, by placing said copy(ies) in a postage paid
envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said
copy(ies) into an inter-office delivery receptacle located in
the Clerk's office.
 However, Plaintiff did thereafter file
her consent to the jurisdiction of a magistrate judge
pursuant to 28 U.S.C. § ...