Case 5:21-cv-00057-JWH-SHK Document 19 Filed 02/14/22 Page 1 of 5 Page ID #:88

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MICHELLE RAMIREZ, Case No. 5:21-cv-00057-JWH-SHK

12 Plaintiff, ORDER DISMISSING CASE v. 13

SUPERIOR COURT OF CALIFORNIA,

14 COUNTY OF SAN BERNARDINO, et al., 15 Defendants. 16

17

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1 For the following reasons, this case is DISMISSED without prejudice. 2 I. BACKGROUND 3 On January 12, 2021, Plaintiff Michelle Ramirez (“Plaintiff”), proceeding 4 pro se and in forma pauperis, filed a Complaint (“Complaint” or “Compl.”), under 5 28 U.S.C. § 1331 (“§ 1331”), against the Superior Court of California, County of 6 San Bernardino (“San Bernardino Superior Court”) and Arthur A. Harrison, a judge 7 for the San Bernardino Superior Court (“Judge Harrison” and together, 8 “Defendants”). Electronic Case Filing Number (“ECF No.”) 1, Compl. On 9 January 28, 2021, the Court issued an Order Dismissing the Complaint with Leave 10 to Amend (“ODLA”). ECF No. 12, ODLA. In the ODLA, Plaintiff was ordered to 11 file a First Amended Complaint (“FAC”) by February 18, 2021, if Plaintiff wished 12 to continue pursuing her claims. Id. at 16. 13 Plaintiff failed to timely file a FAC as ordered in the ODLA. On October 7, 14 2021, Plaintiff was ordered to show cause (“OSC”) by October 22, 2021, why the 15 case should not be dismissed for failure to prosecute and follow Court orders. ECF 16 No. 17, OSC. Plaintiff was warned in the OSC that the Court “will deem” failure to 17 timely respond to the OSC as “a further violation of a Court order justifying 18 dismissal, and also deem such failure as further evidence of a lack of prosecution on 19 Plaintiff’s part.” Id. at 1 (emphasis in original). As of the date of this Order, 20 Plaintiff has failed to file a FAC, respond to the Court’s OSC, or otherwise 21 participate in this litigation. 22 II. LEGAL STANDARD 23 District courts have sua sponte authority to dismiss actions for failure to 24 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash 25 R.R. Co., 370 U.S. 626, 629-30 (1962); Hells Canyon Pres. Council v. U.S. Forest 26 Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an action under 27 Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 28 or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. 2 Case 5:21-cv-00057-JWH-SHK Document 19 Filed 02/14/22 Page 3 of 5 Page ID #:90

1 Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering dismissal for failure to 2 comply with court orders). 3 In deciding whether to dismiss for failure to prosecute or comply with court 4 orders, a district court must consider five factors: “(1) the public’s interest in 5 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 6 risk of prejudice to the defendants; (4) the public policy favoring disposition of 7 cases on their merits; and (5) the availability of less drastic sanctions.” Henderson 8 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also Pagtalunan v. Galaza, 291 9 F.3d 639, 642 (9th Cir. 2002) (setting out five factors similar to those in Henderson). 10 “Dismissal is appropriate ‘where at least four factors support dismissal, or where at 11 least three factors ‘strongly’ support dismissal.’” Neal v. Reslan, 12 No. CV 19-09291 PA (ASx), 2020 WL 754366, at *1 (C.D. Cal. Jan. 16, 2020) 13 (quoting Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (internal 14 citations omitted) (citing Ferdik, 963 F.2d at 1263)). In a case involving sua sponte 15 dismissal, however, the fifth Henderson factor regarding the availability of less 16 drastic sanctions warrants special focus. Hernandez, 138 F.3d at 399. 17 III. DISCUSSION 18 Here, the first two factors—public interest in expeditious resolution of 19 litigation and the Court’s need to manage its docket—weigh in favor of dismissal. 20 Despite being warned that failure to respond to the OSC will be deemed further 21 evidence of a lack of prosecution and a further violation of a Court order justifying 22 dismissal, Plaintiff has failed to do so. ECF No. 17, OSC at 1 (emphasis in 23 original). This failure to prosecute and follow Court orders hinders the Court’s 24 ability to move this case toward disposition and suggests that Plaintiff does not 25 intend to litigate this action diligently. 26 The third factor—prejudice to Defendant—also weighs in favor of dismissal. 27 A rebuttable presumption of prejudice to a defendant arises when a plaintiff 28 unreasonably delays prosecuting an action. See In re Eisen, 31 F.3d 1447, 1452-53 3 Case 5:21-cv-00057-JWH-SHK Document 19 Filed 02/14/22 Page 4 of 5 Page ID #:91

1 (9th Cir. 1994) (citations omitted). Nothing suggests such a presumption is 2 unwarranted in this case, considering that Plaintiff has failed to comply with the 3 Court’s OSC and Plaintiff has not offered any excuse for his failure to comply with 4 the OSC and respond in a timely manner. Thus, this “prejudice” element favors 5 dismissal. 6 The fourth factor—public policy in favor of deciding cases on the merits— 7 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to move 8 litigation towards disposition at a reasonable pace and to avoid dilatory and evasive 9 tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff 10 has not met this responsibility despite having been: (1) instructed on her 11 responsibilities; (2) granted sufficient time in which to discharge them; and 12 (3) warned of the consequences of failure to do so. Under these circumstances, 13 though this policy favors Plaintiff, it does not outweigh Plaintiff’s repeated failure to 14 obey Court orders or to file responsive documents within the time granted. 15 The fifth factor—availability of less drastic sanctions—also weighs in favor 16 of dismissal. The Court cannot move the case toward disposition without Plaintiff’s 17 compliance with Court orders or participation in this litigation. Despite the Court’s 18 attempt to obtain a response, Plaintiff has shown she is either unwilling or unable to 19 comply with Court orders by failing to file responsive documents and failing to 20 otherwise cooperate in prosecuting this action. The Court is not aware of any lesser 21 sanction that is available in this case. See Henderson, 779 F.2d at 1424 (“The 22 district court need not exhaust every sanction short of dismissal before finally 23 dismissing a case but must explore possible and meaningful alternatives.”) (citation 24 omitted); Roman v. Smith, No. 2:18-07909 PA (ADS), 2019 WL 8013120, at *1 25 (C.D. Cal. Nov. 18, 2019). 26 Accordingly, dismissal of this action, without prejudice, is appropriate here. 27 28 4 Case 6:21-cv-00057-JWH-SHK Document 19 Filed 02/14/22 Page5of5 Page |ID#:92

1 IV. CONCLUSION 2 For the reasons discussed above, IT IS HEREBY ORDERED that the case 3 | is DISMISSED without prejudice. 4 IT IS SO ORDERED.

6 | Dated: February 14, 2022 □□ 8 | Presented by: ? Wepre 10 | HONORABLE SHASHI H. KEWALRAMANI 1 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28