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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 IAN LAMONTE CORMIER, Case No. 5:24-cv-00648-SVW-KES

12 Plaintiff,

ORDER DISMISSING ACTION

13 v.

WITHOUT PREJUDICE FOR LACK

14 THE PEOPLE OF THE STATE OF OF PROSECUTION

15 CALIFORNIA, et al.

16 Defendants.

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18

19 I.

20 BACKGROUND 21 On March 27, 2024, Ian LaMonte Cormier (“Plaintiff”) filed a pro se civil 22 rights complaint under 42 U.S.C. § 1983 (“Complaint” at Dkt. 1). On April 10, 23 2024, the Court dismissed the Complaint, finding that it (a) failed to comply with 24 Federal Rule of Civil Procedure 8; (b) improperly joined multiple, unrelated claims 25 in a single lawsuit; and (c) appeared to bring claims barred by Eleventh 26 Amendment immunity. (Dkt. 3.) However, the Court granted Plaintiff leave to 27 amend the Complaint. (Id.) 28 1 Plaintiff did not file a First Amended Complaint or a notice of intent to 2 proceed with the initial Complaint. Instead, on April 19, 2024, he filed a notice of 3 appeal. (Dkt. 4.) 4 On April 25, 2024, the Court informed Plaintiff that a dismissal with 5 leave to amend is not an appealable order. (Dkt. 7 at 2.) The Court ordered 6 that on or before May 20, 2024, Plaintiff should do one of the following: 7 1. File a First Amended Complaint that attempts to remedy the 8 defects identified in the Complaint. If Plaintiff chooses to file a 9 First Amended Complaint, it should bear the docket number 10 assigned to this case (5:24-cv-00648-SVW-KES), be labeled “First 11 Amended Complaint,” and be complete in and of itself without 12 reference to the original Complaint or any other documents (except 13 any documents that are attached to the First Amended Complaint 14 as exhibits). 15 2. If Plaintiff disagrees with the analysis in the April 10, 2024 16 screening order and/or believes he cannot add any more factual 17 allegations to his Complaint, then he may file a “Notice of Intent 18 Not to File an Amended Complaint.” If Plaintiff chooses to file 19 such a notice, then the Magistrate Judge may recommend that the 20 District Judge enter a final, appealable order dismissing the 21 Complaint without leave to amend. 22 (Id.) 23 As of the date of this order, the Court has not received any further filings 24 from Plaintiff. 25 II. 26 LEGAL STANDARD 27 A district court may dismiss an action for failure to prosecute, failure to 28 follow court orders, or failure to comply with the federal or local rules. See Fed. R. 1 Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-30 (1962); Ghazali v. 2 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). Central District of California 3 Local Rule 41-1 provides, “Civil suits which have been pending for an 4 unreasonable period of time without any action having been taken therein may, 5 after notice, be dismissed for want of prosecution.”1 6 The Court has discretion to dismiss the action with or without prejudice. See 7 Fed. R. Civ. P. 41(b) (“[u]nless the dismissal order states otherwise,” or certain 8 exceptions apply, a dismissal pursuant to Federal Rule of Civil Procedure 41(b) 9 “operates as an adjudication on the merits”); Local Rule 41-2 (“[u]nless the Court 10 provides otherwise, any dismissal pursuant to [Local Rule] 41-1 shall be without 11 prejudice”); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996) (“Dismissal 12 with prejudice and default on counterclaims, for willful and inexcusable failure to 13 prosecute, are proper exercises of discretion under Federal Rules of Civil Procedure 14 41(b), 16(f), and the inherent power of the court.”). 15 In determining whether to dismiss a case for failure to prosecute or failure to 16 comply with court orders, the Ninth Circuit has instructed district courts to consider 17 the following five factors: (1) the public’s interest in expeditious resolution of 18 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 19 defendants; (4) the availability of less drastic sanctions; and (5) the public policy 20 favoring disposition of cases on their merits. In re Phenylpropanolamine (PPA) 21 Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). The test is not 22 “mechanical,” but provides a “non-exhaustive list of things” to “think about.” 23 Valley Eng’rs v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998). 24 25

26 1 The Local Rules of the U.S. District Court for the Central District of 27 California are available online at: https://www.cacd.uscourts.gov/court- procedures/local-rules. 28 1 III. 2 DISCUSSION 3 Despite the pending appeal in the Ninth Circuit, this Court retains jurisdiction 4 to dismiss this case. “As a general rule, ‘[t]he filing of a notice of appeal is an 5 event of jurisdictional significance—it confers jurisdiction on the court of appeals 6 and divests the district court of its control over those aspects of the case involved in 7 the appeal.’” Est. of Conners by Meredith v. O’Connor, 6 F.3d 656, 658 (9th Cir. 8 1993) (citation omitted). “This transfer of jurisdiction from the district court to the 9 court of appeals is not effected, however, if a litigant files a notice of appeal from 10 an unappealable order.” Id. “[A] dismissal with leave to amend is not an 11 appealable decision.” WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 12 1997). 13 The first two factors favor dismissal. The first factor—the public’s interest 14 in the expeditious resolution of litigation—“always favors dismissal.” Yourish v. 15 Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). The second factor—the Court’s 16 need to manage its docket—favors dismissal here because Plaintiff’s 17 “noncompliance has caused [this] action to come to a complete halt, thereby 18 allowing [him] to control the pace of the docket rather than the Court.” Id. (internal 19 quotations marks omitted). 20 The third factor—prejudice to Defendants—weighs in favor of dismissal, 21 although perhaps not as strongly as some of the other factors. Because this Court 22 dismissed the Complaint on screening, Defendants have not been served. See 23 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (“We have previously 24 recognized that pendency of a lawsuit is not sufficiently prejudicial in and of itself 25 to warrant dismissal.”); Hunter v. Sandoval, No. 17-cv-09257-CJC-SHK, 2018 U.S. 26 Dist. LEXIS 210543 at *5, 2018 WL 6570870 at *2 (C.D. Cal. Dec. 12, 2018) 27 (finding no prejudice to a defendant who had not yet been served). On the other 28 hand, a rebuttable presumption of prejudice to the defendants arises when a plaintiff 1 unreasonably delays prosecution of an action, In re Eisen, 31 F.3d 1447, 1452-53 2 (9th Cir. 1994), and unnecessary delay “inherently increases the risk that witnesses’ 3 memories will fade and evidence will become stale.” Pagtalunan, 291 F.3d at 643. 4 The fourth factor—availability of less drastic sanctions—favors dismissal. 5 The Court’s prior orders warned Plaintiff that failure to respond might result in a 6 dismissal of this action. (Dkt. 3, 7.) See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 7 (9th Cir. 1992) (“a district court’s warning to a party that his failure to obey the 8 court’s order will result in dismissal can satisfy the ‘consideration of alternatives’ 9 requirement”) (citation omitted). 10 The fifth factor—public policy favoring a disposition of an action on its 11 merits—arguably weighs against dismissal here. Pagtalunan v. Galaza, 291 F.3d 12 639, 643 (9th Cir. 2002). However, the effect of this factor is somewhat mitigated 13 by the fact that Plaintiff’s Complaint failed to state a claim for relief for the reasons 14 explained in the Court’s April 10, 2024 dismissal order. (Dkt. 3.) 15 Given that the enumerated factors largely support dismissal, this action will 16 be dismissed pursuant to Rule 41(b) and Local Rule 41-1. Considering all of the 17 circumstances, and in particular given that Plaintiff is proceeding pro se, the 18 dismissal shall be without prejudice. 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1 IV. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment will be entered dismissing 4 | this action without prejudice for failure to prosecute.

6 | DATED: July 1, 2024 an fGen SF FEEL Y ) Presented by: 10 | eum 6. Sestt?

KAREN E. SCOTT

12 | UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28