1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 PAUL ANTHONY AQUINO, Case No. 24-cv-04470-BLF

8 Plaintiff, ORDER ADOPTING REPORT AND

RECOMMENDATION; AND

9 v. DISMISSING ACTION WITHOUT

PREJUDICE FOR FAILURE TO

10 LESLIE SALVADOR, PROSECUTE 11 Defendant. [Re: ECF 19]

12

13 14 Plaintiff filed this pro se action in the United States District Court for the Central District 15 of California, alleging violations of the Americans with Disabilities Act and an unlawful eviction 16 from an apartment in Salinas, California. See Compl., ECF 1. The case was transferred to this 17 district because the Salinas apartment and the property owner/landlord appear to be located within 18 the Northern District of California. See Order Transferring Action, ECF 8. 19 Upon transfer, the case was assigned to Magistrate Judge Susan van Keulen, who denied 20 Plaintiff’s application to proceed in forma pauperis (“IFP”) as incomplete and set a deadline for 21 Plaintiff to renew the IFP application or pay the filing fee. See Order Denying Without Prejudice 22 Applic. to Proceed IFP, ECF 17. Plaintiff failed to respond, and Judge van Keulen issued an 23 Order to Show Cause why the action should not be dismissed. See Order to Show Cause, ECF 18. 24 Plaintiff again failed to respond, and on December 12, 2024, Judge van Keulen issued an Order for 25 Reassignment and Report and Recommendation of Dismissal (“R&R”), recommending that the 26 action be dismissed for failure to prosecute. See R&R, ECF 19. The R&R advised that any party 27 could file an objection within 14 days pursuant to Federal Rule of Civil Procedure 72(b). See id. 1 The action was reassigned to the undersigned judge. See Order Reassigning Case, ECF 20. 2 || Plaintiff did not file objections within the 14-day period provided by Rule 72(b), which has 3 || expired. On this record, the Court finds Judge van Keulen’s recommendation to dismiss for 4 failure to prosecute to be correct and well-reasoned. See Fed. R. Civ. P. 41(b) (authorizing 5 dismissal for failure to prosecute). 6 The R&R does not specify whether dismissal is recommended with prejudice or without 7 || prejudice. The Order to Show Cause issued by Judge van Keulen warned Plaintiff that failure to 8 || respond could result in dismissal of the action with prejudice. See Order to Show Cause. 9 However, this Court concludes that it is more appropriate to dismiss the action without prejudice 10 || where the basis for dismissal is failure to submit a renewed IFP application or pay the filing fee. 11 This conclusion is consistent with decisions of numerous district courts in this circuit. See, e.g., 12 Franklin v. Placer Cnty., No. 2:24-CV-2714-DC-JDP (PC), 2025 WL 90517, at *1 (E.D. Cal. Jan. 13 14, 2025) (“This action is dismissed, without prejudice, due to Plaintiff's failure to pay the 14 || required filing fee and failure to comply with a court order[.]”); Mederer v. Access Cap. Inv. Fund 15 Two, LP, No. 21-CV-9699-YGR, 2022 WL 2289056, at *1 (N.D. Cal. Mar. 18, 2022) (“[T]his a 16 || case is DISMISSED WITHOUT PREJUDICE for failure to file an amended application or pay the 2 17 || $402 filing feef.]”). 18 Accordingly, the R&R is ADOPTED and the action is DISMISSED WITHOUT 19 PREJUDICE for failure to prosecute. The Clerk shall close the file. 20 IT IS SO ORDERED. 21 22 || Dated: January 30, 2025

ETH LABSON FREEMAN

24 United States District Judge 25 26 27 28