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6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LAURACK D. BRAY, Case No. 2:24-cv-08640-FMO (AJR) 12 Plaintiff, ORDER DISMISSING ACTION

WITHOUT PREJUDICE FOR

13 FAILURE TO COMPLY WITH A v.

COURT ORDER

14 MATTHEW S. KENEFICK, et al., 15 Defendants. 16 17 18 INTRODUCTION 19 On October 8, 2024, Plaintiff filed a Complaint and a Request to Proceed in 20 Forma Pauperis (“IFP request”). (ECF Nos. 1, 5.) In the Complaint, Plaintiff 21 alleged racial discrimination in violation of 42 U.S.C. § 1981 and a state law claim 22 of defamation. (ECF No. 1 at 9-11.) 23 On October 31, 2024, the Court issued an order postponing a ruling on the 24 IFP request until Plaintiff provided more information. (ECF No. 15.) The Court 25 ordered Plaintiff either to file another IFP request that explains why his monthly 26 expenses exceeds his monthly income by $1,070 or to pay the filing fee of $405. 27 (Id.) The Court also ordered Plaintiff to file an Amended Complaint with more 28 factual allegations for his claim of racial discrimination. (Id.) The Court warned 1 Plaintiff that his failure to comply with the Court’s order within 30 days could 2 result in the dismissal of this action. (Id.) 3 As of this date, more than 30 days later, Plaintiff has not filed another IFP 4 request, paid the filing fee, or filed an Amended Complaint. Instead, Plaintiff has 5 filed a “Motion to the Chief Judge” arguing that this case was improperly assigned 6 to the undersigned District Judge and that this case should proceed before a 7 different District Judge who grants the IFP request. (ECF No. 16.) For the 8 following reasons, this action is dismissed without prejudice. 9 DISCUSSION 10 A. Legal Standard. 11 A district court has the inherent power under Federal Rule of Civil Procedure 12 41(b) to dismiss an action for failure to prosecute or to comply with the court’s 13 order. Link v. Wabash R. Co., 370 U.S. 626, 631 (1962). Specifically, the failure of 14 a plaintiff to comply with a district court’s order to file an amended complaint is 15 properly met with the sanction of dismissal under Rule 41(b). Applied 16 Underwriters, Inc., v. Lichtenegger, 913 F.3d 884, 891 (9th Cir. 2019) (collecting 17 cases). “Under Ninth Circuit precedent, when a plaintiff fails to amend his 18 complaint after the district judge dismisses the complaint with leave to amend, the 19 dismissal is typically considered a dismissal for failing to comply with a court order 20 rather than for failing to prosecute the claim.” Yourish v. California Amplifier, 191 21 F.3d 983, 986 (9th Cir. 1999). 22 “[I]n order for a court to dismiss a case as a sanction, the district court must 23 consider five factors: ‘(1) the public's interest in expeditious resolution of litigation; 24 (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; 25 (4) the public policy favoring disposition of cases on their merits; and (5) the 26 availability of less drastic alternatives.’” Yourish, 191 F.3d at 986 (quoting 27 Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). A district 28 court’s sanction of dismissal generally will be affirmed where at least four factors 1 support dismissal or where at least three factors strongly support it. Hernandez, 138 2 F.3d at 399. As stated below, four of the five factors support dismissal. 3 B. Analysis. 4 1. The Public’s Interest in Expeditious Resolution. 5 The first factor supports dismissal. “[T]he public’s interest in expeditious 6 resolution of litigation always favors dismissal.” Yourish, 191 F.3d at 990. 7 2. The Court’s Need to Manage Its Docket 8 The second factor also supports dismissal. Plaintiff’s failure to respond to 9 the Court’s Order interferes with the Court’s ability to manage its docket. See 10 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (“The trial judge is in the 11 best position to determine whether the delay in a particular case interferes with 12 docket management and the public interest. Arguably, Pagtalunan’s petition has 13 consumed some of the court’s time that could have been devoted to other cases on 14 the docket.”) (internal citation omitted); see also Irvin v. Madrid, 749 F. App’x 15 546, 547 (9th Cir. 2019) (“The second factor also favors dismissal because the 16 district court is in the best position to determine whether a particular set of 17 circumstances interferes with docket management.”). 18 3. The Risk of Prejudice to Defendants. 19 The third factor also supports dismissal. The risk of prejudice is “related to the 20 plaintiff’s reason for defaulting in failing to timely amend.” Yourish, 191 F.3d at 21 991. The record suggests no plausible reason for Plaintiff’s failure to comply with 22 the Court’s Order. This indicates sufficient prejudice to Defendant. See In re Eisen, 23 31 F.3d 1447, 1452-53 (9th Cir. 1994) (recognizing that the law presumes injury to 24 the defendants from unreasonable delay). 25 4. The Public Policy Favoring Disposition of the Merits. 26 The fourth factor weighs against dismissal. “We have often said that the 27 public policy favoring disposition of cases on their merits strongly counsels against 28 dismissal.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 1 F.3d 1217, 1228 (9th Cir. 2006) (citing Hernandez, 138 F.3d at 399). On the other 2 hand, “this factor lends little support to a party whose responsibility it is to move a 3 case toward disposition on the merits but whose conduct impedes progress in that 4 direction.” Products Liability Litigation, 460 F.3d at 1228 (citations and quotation 5 marks omitted). Thus, this factor alone does not preclude dismissal. 6 5. The Availability of Less Drastic Alternatives. 7 The fifth factor supports dismissal. “Here the fact that the district court 8 allowed [Plaintiff] an additional thirty days to amend his complaint . . . constituted 9 an attempt at a less drastic sanction than outright dismissal.” Ferdik v. Bonzelet, 10 963 F.2d 1258, 1262 (9th Cir. 1992). The Court also warned Plaintiff that the 11 failure to comply with the Court’s Order to amend his Complaint would result in 12 dismissal. See Products Liability Litigation, 460 F.3d at 1229 (“Warning that 13 failure to obey a court order will result in dismissal can itself meet the 14 ‘consideration of alternatives’ requirement.”) (citing, inter alia, Ferdik, 963 F.2d at 15 1262 (“Moreover, our decisions also suggest that a district court’s warning to a 16 party that his failure to obey the court’s order will result in dismissal can satisfy the 17 ‘consideration of alternatives’ requirement.”)). Despite the Court’s warning, 18 Plaintiff failed to file an Amended Complaint. 19 C. Conclusion. 20 Four of the five factors support dismissal of the action for failure to comply 21 with an Order of the Court. Moreover, the severity of the sanction is lessened 22 because the dismissal is without prejudice rather than with prejudice, thereby 23 “giving the plaintiff an opportunity to return and prosecute his claims another day.” 24 Ash v. Cvetkov, 739 F.2d 493, 497 (9th Cir. 1984). In sum, dismissal without 25 prejudice is warranted. 26 \\ 27 \\ 28 \\ 1 ORDER 2 It is ordered that the action is dismissed without prejudice. Fed. R. Civ. P. 3 41(b). 4 5 DATED: December 3, 2024 6 7 /s/

FERNANDO M. OLGUIN

8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28