1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 RYAN TYSON, Case No. 23-cv-01889-HSG

6 Plaintiff, ORDER DISMISSING CASE FOR

FAILURE TO PROSECUTE

7 v.

8 ACRT SERVICES INCORPORATED, et al., 9 Defendants. 10 11 On January 5, 2024, the Court granted several motions to dismiss Plaintiff’s Second 12 Amended Complaint filed by Defendants ACRT Services Incorporated, Michael Weidner, Cliff 13 Benedict, Shannon Cecconi, Annissa Grider, Travelers Indemnity Company, New York Life 14 Group Benefit Solutions, and Great Banc (collectively, “Defendants”). See Dkt. No. 84. The 15 Court granted Plaintiff leave to amend his complaint by February 2, 2024, and warned him that 16 failure to file an amended complaint by the deadline could result in dismissal of the action in its 17 entirety. See id. at 13. Plaintiff failed to file an amended complaint. On February 22, 2024, the 18 Court ordered Plaintiff to show cause why the case should not be dismissed for failure to 19 prosecute. See Dkt. No. 86. Plaintiff failed respond. Defendants then filed an administrative 20 motion for default judgment based on Plaintiff’s unresponsiveness, and again Plaintiff did not 21 respond. See Dkt. No. 85. For the reasons set forth below, this action is DISMISSED 22 WITHOUT PREJUDICE for failure to prosecute. 23 I. DISCUSSION 24 The district court may dismiss a case for failure to prosecute or for failure to comply with a 25 court order. See Fed. R. Civ. P. 41(b). “The authority of a court to dismiss sua sponte for lack of 26 prosecution has generally been considered an ‘inherent power,’ governed not by rule or statute but 27 by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly 1 “Despite this authority, dismissal is a harsh penalty and, therefore, it should only be imposed in 2 extreme circumstances.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (citations 3 omitted); see also Fed. R. Civ. P. 41(b) (stating that dismissal for failure to prosecute “operates as 4 an adjudication on the merits” unless the order says otherwise). 5 Courts “must weigh five factors” in determining whether to dismiss a case for failure to 6 prosecute: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 7 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 8 disposition of cases on their merits; and (5) the availability of less drastic alternatives.” See 9 Ferdik, 963 F.2d at 1260–61. Here, the Court considers each factor in turn, and finds that they 10 weigh in favor of dismissal. 11 First, “the public’s interest in expeditious resolution of litigation always favors dismissal.” 12 Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). That is true here. Plaintiff 13 failed to file an amended pleading or respond to the Court’s order to show cause. See Dkt. Nos. 14 84, 86. The Court is satisfied that Plaintiff’s lack of responsiveness contravenes the “public’s 15 interest in expeditious resolution of litigation.” See id. This factor therefore weighs in favor of 16 dismissal. 17 Second, it is “incumbent” upon courts “to manage [their] docket without being subject to 18 routine noncompliance of litigants.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) 19 (citing Ferdik, 963 F.2d at 1261). Here, Plaintiff has demonstrated such “routine noncompliance” 20 by failing to amend his pleading or respond to the Court’s order by the deadlines set (or ever). It 21 is the “trial judge [who] is in the best position to determine whether the delay in a particular case 22 interferes with docket management and the public interest,” and this present delay has “consumed 23 some of the court’s time that could have been devoted to other cases on the docket.” Id. This 24 factor therefore weighs in favor of dismissal. 25 Third, in order to prove prejudice, “a defendant must establish that plaintiff’s actions 26 impaired defendant’s ability to proceed to trial or threatened to interfere with the rightful decision 27 of the case.” Id. (citing Malone v. U.S. Postal Serv., 833 F.2d 128, 131 (9th Cir. 1 reference to the strength of the plaintiff’s excuse for the default.” Malone, 833 F.2d at 131 2 (citation omitted). In Malone, which involved a Rule 41(b) dismissal for failure to comply with a 3 court order, the district court found the plaintiff’s excuse for her failure to comply with the order 4 to be “groundless,” justifying dismissal. Id. In Yourish, which also involved plaintiffs who failed 5 to obey a court order, the court concluded the defendants had suffered “sufficient prejudice” where 6 the plaintiffs had only a “paltry excuse” for why they failed to timely amend their complaint. 191 7 F.3d at 991–92. Here, Plaintiff has failed to (1) timely amend his complaint; (2) obey a court 8 order; and (3) oppose or respond to Defendants’ motion for judgment. Unlike either Malone or 9 Yourish, the Plaintiff has not provided any excuse for his noncompliance. By way of comparison, 10 in Mondala v. Wells Fargo Bank, N.A., which involved dismissal for missing two court-ordered 11 deadlines, the plaintiff was similarly “entirely absent,” justifying dismissal. No. 18-CV-01781, 12 2018 WL 3126392, at *2 (N.D. Cal. June 26, 2018). This factor therefore weighs in favor of 13 dismissal. 14 Fourth, the Court has attempted to avail itself of less drastic alternatives that have proven 15 ineffective in advancing the case. The Court first allowed Plaintiff an additional four weeks to 16 amend his complaint. See Dkt. No. 84. The Court then entered an order to show cause, expressly 17 warning Plaintiff that his case was at risk of dismissal for failure to prosecute and giving him an 18 additional two weeks to rectify the issue. See Dkt. No. 86; Ferdik, 963 F.2d at 1262 (holding that 19 warning a party that his failure to obey the court’s order will result in dismissal can satisfy the 20 “consideration of alternatives” requirement). This factor therefore weighs in favor of dismissal. 21 Lastly, while “[p]ublic policy favors disposition of cases on the merits,” such that “this 22 factor weighs against dismissal,” Plaintiff is not precluded from litigating these claims when he is 23 prepared to do so in compliance with Court orders. See Pagtalunan, 291 F.3d at 643. 24 Because four of the five factors weigh in favor of dismissal, the Court finds that dismissal 25 of Plaintiff’s case for failure to prosecute is appropriate. 26 // 27 //

II CONCLUSION

Plaintiff's case is DISMISSED WITHOUT PREJUDICE. The Clerk is directed to 2 close the case. This order terminates as moot Dkt. No. 85. 3

IT IS SO ORDERED.

4 Dated: 7/15/2024

6 avwote S. GILLIAM. JR. Jb 7 United States District Judge 8 9 10 11 a 12

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