Case 2:20-cv-06635-ODW-KS Document 53 Filed 01/13/22 Page 1 of 6 Page ID #:294

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7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA

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JAMES EDWARD BAERTSCHIGER, ) NO. CV 20-6635-ODW (KS)

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11 Plaintiff, ) ORDER: DISMISSING FIRST AMENDED ) 12 v. ) COMPLAINT FOR FAILURE TO

PROSECUTE; AND JUDGMENT

13 ) ) TIMOTHY C. LOPEZ, et al, 14 ) 15 ) Defendants. ) 16 _________________________________ 17 18 INTRODUCTION 19 20 James Edward Baertschiger (“Plaintiff”), proceeding pro se and in forma pauperis, 21 commenced this civil rights action pursuant to 42 U.S.C. § 1983 on July 24, 2020. (Dkt. No. 22 1.) On May 6, 2021, Defendant Lopez and Defendant Tran (collectively, “Defendants”) 23 filed a Motion to Dismiss Plaintiff’s Complaint for failure to state a claim (the “first 24 Motion”). (Dkt. No. 27.) On June 11, 2021, after the first Motion was fully briefed, the 25 Court granted the first Motion in part, denied in part, dismissed claims three and four of the 26 Complaint with leave to amend, and directed Plaintiff to file a First Amended Complaint, if 27 any, within twenty-one (21) days. (Dkt. No. 31.) On August 26, 2021, Defendants filed an 28 Answer to the Complaint. (Dkt. No. 35.) 1 Case 2:20-cv-06635-ODW-KS Document 53 Filed 01/13/22 Page 2 of 6 Page ID #:295

1 On September 7, 2021, Plaintiff filed a First Amended Complaint (the “FAC”), which 2 is now the operative complaint. (Dkt. No. 37.) The last time Plaintiff took any action in his 3 case was when he filed the FAC. In the FAC, Plaintiff sues Defendants in their individual 4 capacities and asserts the following causes of action: (1) violations of the Fourth and 5 Fourteenth Amendments based on unreasonable seizure and false arrest premised on a false 6 report of a criminal threat and lack of probable cause (Claim One); (2) violations of the 7 Fourth and Fourteenth Amendments, premised on Defendant Lopez’s arrest of Plaintiff and 8 use of excessive force (Claim Two); (3) a violation of the Fourth and Fourteenth 9 Amendments based on the failure to summon medical aid for Plaintiff’s injuries (Claim 10 Three); and (4) violations of the Fourth and Fourteenth Amendments based on malicious 11 prosecution (Claim Four). (Id. at 4-5.) The Court screened the FAC under 28 U.S.C. § 12 1915(e)(2), and on September 29, 2021, United States Magistrate Judge Karen L. Stevenson 13 issued a Report and Recommendation, recommending dismissal of Claim Four from the 14 FAC without leave to amend, to the extent that the claim was based on Defendant Lopez’s 15 allegedly false testimony. (See Dkt. Nos. 38-40.) Plaintiff did not file any objections to the 16 September 29, 2021 Report and Recommendation. On November 15, 2021, United States 17 District Judge Otis D. Wright, II issued an Order accepting the Report and Recommendation. 18 (Dkt. No. 41.) 19 20 On November 30, 2021, the Court scheduled a telephonic discovery conference for 21 December 16, 2021, and ordered Plaintiff to show cause on or before December 7, 2021 as to 22 why the Court should not impose sanctions due to Plaintiff’s failure to comply with the 23 Court’s discovery procedures. (Dkt. No. 42.) The Court cautioned Plaintiff that his “failure 24 to timely respond to [the Court’s November 30, 2021] Order and establish good cause for 25 failing to respond to the discovery [would] result in an order against [Plaintiff] to pay 26 sanctions for failure to comply with a court order and may result in a recommendation that 27 the action be dismissed for failure to prosecute.” (Id. (emphasis omitted).) Plaintiff did not 28 2 Case 2:20-cv-06635-ODW-KS Document 53 Filed 01/13/22 Page 3 of 6 Page ID #:296

1 file a Response to the Court’s November 30, 2021 Order or otherwise communicate with the 2 Court about this case. 3 4 On December 1, 2021, Defendants filed a Motion to Dismiss Claim No. Three of 5 Plaintiff’s FAC for failure to state a claim (the “second Motion”). (Dkt No. 44.) The Court 6 ordered Plaintiff to file an Opposition to the second Motion no later than December 23, 7 2021. (Dkt. No. 45.) To date, Plaintiff has not filed an Opposition to the second Motion. 8 9 On December 16, 2021, the Court held a telephonic discovery conference. (Dkt. No. 10 47.) Defendants’ counsel appeared for the hearing and Plaintiff did not appear. (Id.) 11 Plaintiff did not inform the Court that he would not appear. Accordingly, the Court ordered 12 Plaintiff to pay sanctions in the amount of $250.00 for his failure to appear and failure to 13 respond to the Court’s November 30, 2021 Order. (Id. at 2.) The sanctions were to be paid 14 to the Clerk of Court no later than December 31, 2021. (Id.) Plaintiff has not paid the 15 sanctions. 16 17 On December 29, 2021, Defendants filed a Motion to Compel Production of 18 Documents and Interrogatory Responses (the “Motion to Compel”). (Dkt. No. 50.) The 19 Court ordered Plaintiff to file a Response to the Motion to Compel no later than February 2, 20 2022. (Dkt. No. 51.) Plaintiff has not filed a Response to the Motion to Compel. 21 22 On January 11, 2022, Defendants filed a Motion to Dismiss for Lack of Prosecution 23 (the “third Motion”). (Dkt. No. 52.) In the third Motion, Defendants note that “Plaintiff has 24 previously stated to defense counsel that he does not wish to proceed in this case.” (Id. at 2.) 25 26 More than five weeks have now passed since Plaintiff’s Response to the Court’s 27 November 30, 2021 Order was due, three weeks have passed since Plaintiff’s Opposition to 28 the second Motion was due, nearly two weeks have passed since Plaintiff’s deadline to pay 3 Case 2:20-cv-06635-ODW-KS Document 53 Filed 01/13/22 Page 4 of 6 Page ID #:297

1 sanctions, and more than four months have passed since Plaintiff last took action in his case. 2 Therefore, the Court concludes that this action should be dismissed without prejudice 3 pursuant to Federal Rule of Civil Procedure 41(b) and Local Rules 7-12 and 41-5, for failure 4 to prosecute, comply with the Court’s Orders, appear, oppose the second Motion, and pay 5 sanctions as directed by the Court. 6 7 DISCUSSION 8 9 Rule 41(b) of the Federal Rules of Civil Procedure grants federal district courts the 10 authority to sua sponte dismiss actions for failure to prosecute. Link v. Wabash R. Co., 370 11 U.S. 626, 629-30 (1962). In determining whether dismissal for failure to prosecute or failure 12 to comply with a court order is proper, a court must weigh several factors, including: (1) the 13 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 14 docket; (3) the risk of prejudice to defendants; (4) the availability of less drastic sanctions; 15 and (5) the public policy favoring the disposition of cases on their merits. Pagtalunan v. 16 Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260- 17 61 (9th Cir. 1992)). 18 19 In this case, the first two factors—public interest in expeditious resolution of litigation 20 and the need to manage the Court’s docket—weigh in favor of dismissal. Plaintiff has not 21 taken any action in his case since filing the FAC on September 7, 2021. Since that time, 22 Defendants have filed three motions: (1) the second Motion; (2) the Motion to Compel; and 23 (3) the third Motion—the latter two, a direct consequence of Plaintiff’s failure to prosecute 24 his claim. Plaintiff has allowed the second Motion to languish, unopposed, on the Court’s 25 docket for three weeks. Moreover, Plaintiff’s inaction is what led to the Court’s issuance of 26 the November 30, 2021 Order and the scheduling of the December 16, 2021 discovery 27 conference. Plaintiff failed to respond to the Court’s November 30, 2021 Order and, without 28 notice or excuse, failed to appear for the discovery conference. Plaintiff’s unexcused non- 4 Case 2:20-cv-06635-ODW-KS Document 53 Filed 01/13/22 Page 5 of 6 Page ID #:298

1 appearance warrants dismissal of the FAC for lack of prosecution. See C.D. CAL. LOCAL 2 CIV. R. 41-5. The Court sanctioned Plaintiff for his failure to appear at a Court hearing, but 3 he has not paid the sanctions. Plaintiff’s inaction—and unknown whereabouts—hinders the 4 Court’s ability to move this case toward disposition and indicates that Plaintiff does not 5 intend to litigate this action diligently. 6 7 The third factor—prejudice to defendants—also weighs in favor of dismissal. The 8 prejudice to a defendant simply from the pendency of a lawsuit is insufficient, on its own, to 9 warrant dismissal. Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). However, the Ninth 10 Circuit has held that prejudice may be presumed from unreasonable delay. See In re Eisen, 11 31 F.3d 1447, 1452-53 (9th Cir. 1994); see also Moore v. Teflon Commc’ns. Corp., 589 F.2d 12 959, 967-68 (9th Cir. 1978). Although this presumption may be rebutted where the plaintiff 13 proffers a non-frivolous excuse for the delay, see Laurino v. Syringa Gen. Hosp., 279 F.3d 14 750, 753 (9th Cir. 2002), here, Plaintiff has not proffered any explanation, frivolous or 15 otherwise, for his failure to engage in this matter for the past four months, comply with the 16 Court’s Orders, comply with Local Rule 41-5, oppose the second Motion, and pay sanctions. 17 Plaintiff’s failure to prosecute his action diligently justifies a dismissal. Anderson v. Air W., 18 Inc., 542 F.2d 522, 524 (9th Cir. 1976). 19 20 The fourth factor—the availability of less drastic sanctions—ordinarily counsels 21 against dismissal. However, Plaintiff has failed to comply with the Court’s less drastic 22 sanctions—Plaintiff has not responded to the Court’s November 30, 2021 Order or paid the 23 $250.00 in sanctions that were due by December 31, 2021. The Court repeatedly cautioned 24 Plaintiff that his failure to prosecute may result in dismissal. (See Dkt. Nos. 13 at 2, 21 at 1- 25 2, 42 at 1-2.) No lesser sanction is available in this case. See Henderson v. Duncan, 779 26 F.2d 1421, 1424 (9th Cir. 1986) (“The district court need not exhaust every sanction short of 27 dismissal before finally dismissing a case, but must explore possible and meaningful 28 5 ase 2:20-cv-06635-ODW-KS Document 53 Filed 01/13/22 Page 6of6 Page ID #:299

1 || alternatives.”). The Court therefore concludes that sanctions other than dismissal are not 2 || appropriate. 4 Only the fifth factor, the general policy favoring resolution of cases on the merits, 5 || arguably favors retention of this action on the Court’s docket. It is, however, the 6 || responsibility of Plaintiff to move the case toward disposition on the merits at a reasonable 7 || pace and to refrain from dilatory and evasive tactics. Morris v. Morgan Stanley & Co., 942 8 || F.2d 648, 652 (9th Cir. 1991). The Court cannot dispose of this case on its merits when 9 || Plaintiff has failed to take action in more than four months, ignored the Court’s Orders, and 10 || failed to oppose the pending motions. Thus, it does not appear that the Court’s retention of 11 || this action would increase the likelihood that the matter would be resolved on its merits. 12 13 ORDER 14 15 Therefore, IT IS HEREBY ORDERED that the FAC is DISMISSED; and IT IS 16 || ADJUDGED that this action is dismissed without prejudice. 17 18 IT IS SO ORDERED. 19 20 || DATED: January 13, 2022 ™

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OTIS D. WRIGHT, II

23 UNITED STATES DISTRICT JUDGE 24 |! Presented by: 25 15 | Laem L: Kwensrn 17 KAREN L. STEVENSON 0g UNITED STATES MAGISTRATE JUDGE