Case 5:21-cv-00920-JAK-SHK Document 44 Filed 02/15/22 Page 1 of 4 Page ID #:233

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8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 12 SHANNON KAY LOPEZ, Case No. 5:21-cv-00920-JAK-SHK 13 Plaintiff, 14 v.

ORDER DISMISSING CASE

15 JOAN FRANCS BURGESS, et al., 16 Defendants.

17 18 I. BACKGROUND 19 On October 25, 2021, the United States Magistrate Judge assigned to this case 20 issued a Report and Recommendation (“R&R”), which the United States District 21 Judge assigned to this case adopted on December 1, 2021 (“Order”). Electronic 22 Case Filing Number (“ECF No.”) 40, R&R; ECF No. 42, Order. In the Order, two 23 Motions to Dismiss (“MTDs”) were granted, certain Defendants were dismissed 24 with prejudice, and the claims of Plaintiff Shannon Kay Lopez (“Plaintiff”) against 25 other Defendants were dismissed without prejudice, and with leave to file a First 26 Amended Complaint (“FAC”) by December 22, 2021. ECF No. 42, Order. Plaintiff 27 was “cautioned that if Plaintiff does not timely file a FAC, this action will be 28 dismissed with or without prejudice for failure to state a claim, failure to Case 5:21-cv-00920-JAK-SHK Document 44 Filed 02/15/22 Page 2 of 4 Page ID #:234

1 prosecute, and/or failure to obey Court rules under Federal Rule of Civil 2 Procedure 41(b).” Id. at 3 (emphasis in original). 3 Plaintiff failed timely to file a FAC or otherwise participate in this litigation. 4 Consequently, on January 19, 2022, Plaintiff was ordered to show cause (“OSC”) by 5 February 4, 2022, why this case should not be dismissed for failure to prosecute and 6 follow Court orders. ECF No. 43, OSC at 1. Plaintiff was instructed that Plaintiff 7 could satisfy the OSC by either: “(a) advising the Court that Plaintiff no longer 8 wishes to pursue this action; (b) showing good cause in writing why Plaintiff has not 9 timely filed a FAC; or (c) filing a FAC.” Id. Plaintiff was “warned that failure to 10 timely perform one of these options will result in the dismissal of this case for 11 failure to prosecute and follow Court orders.” Id. (emphasis in original). 12 As of the date of this Order, Plaintiff has failed to respond to these prior 13 orders or otherwise participate in this litigation. 14 II. LEGAL STANDARD 15 District courts have sua sponte authority to dismiss actions for failure to 16 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash 17 R.R. Co., 370 U.S. 626, 629-30 (1962); Hells Canyon Pres. Council v. U.S. Forest 18 Serv., 403 F.3d 683, 689 (9th Cir. 2005) (courts may dismiss an action under 19 Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 20 or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. 21 Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering dismissal for failure to 22 comply with court orders). 23 In deciding whether to dismiss for failure to prosecute or comply with court 24 orders, a district court must consider five factors: “(1) the public’s interest in 25 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 26 risk of prejudice to the defendants; (4) the public policy favoring disposition of 27 cases on their merits; and (5) the availability of less drastic sanctions.” Henderson 28 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also Pagtalunan v. Galaza, 291 2 Case 5:21-cv-00920-JAK-SHK Document 44 Filed 02/15/22 Page 3 of 4 Page ID #:235

1 F.3d 639, 642 (9th Cir. 2002) (setting out five factors similar to those in Henderson). 2 “Dismissal is appropriate ‘where at least four factors support dismissal, or where at 3 least three factors ‘strongly’ support dismissal.’” Neal v. Reslan, No. CV 19-09291 4 PA (ASx), 2020 WL 754366, at *1 (C.D. Cal. Jan. 16, 2020) (quoting Hernandez v. 5 City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (internal citations omitted) 6 (citing Ferdik, 963 F.2d at 1263)). In a case involving sua sponte dismissal, 7 however, the fifth Henderson factor regarding the availability of less drastic 8 sanctions warrants special focus. Hernandez, 138 F.3d at 399. 9 III. DISCUSSION 10 Here, the first two factors -- public interest in expeditious resolution of 11 litigation and the Court’s need to manage its docket -- weigh in favor of dismissal. 12 Despite being warned twice that the case would be dismissed if Plaintiff failed to 13 follow Court orders and prosecute it, Plaintiff has failed to do so. This failure to 14 prosecute and follow Court orders impedes the Court’s ability to move this case 15 toward disposition and suggests that Plaintiff does not intend to litigate this action 16 diligently. 17 The third factor -- prejudice to Defendant -- also weighs in favor of dismissal. 18 A rebuttable presumption of prejudice to a defendant arises when a plaintiff 19 unreasonably delays prosecuting an action. See In re Eisen, 31 F.3d 1447, 1452-53 20 (9th Cir. 1994) (citations omitted). Nothing suggests such a presumption has been 21 rebutted in this case, considering that Plaintiff has failed to comply with the Court’s 22 Order and OSC and Plaintiff has not offered any explanation for her failure to do so. 23 Thus, this “prejudice” element favors dismissal. 24 The fourth factor -- public policy in favor of deciding cases on the merits -- 25 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to move 26 litigation towards disposition at a reasonable pace, and not to engage in dilatory 27 tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff 28 has not met this responsibility despite having been: (1) instructed on her 3 Case §:21-cv-00920-JAK-SHK Document 44 Filed 02/15/22 Page4of4 Page ID #:236

1 | responsibilities; (2) granted sufficient time in which to discharge them; and 2 | (3) warned of the consequences of failure to do so. Under these circumstances, 3 | although this policy weighs against dismissal, it does not outweigh Plaintiff's 4 | repeated failure to obey Court orders or timely to file responsive documents. 5 The fifth factor -- availability of less drastic sanctions -- also weighs in favor 6 | of dismissal. The case cannot move forward and toward disposition without 7 | Plaintiff's compliance with Court orders or participation in this litigation. Despite 8 | attempts to obtain a response from Plaintiff, through her failure to respond, she has 9 | shown she is either unwilling or unable to comply with Court orders. Therefore, no 10 | lesser sanction would be worthwhile in this case. See Henderson, 779 F.2d at 1424 11 | (‘The district court need not exhaust every sanction short of dismissal before finally 12 | dismissing a case but must explore possible and meaningful alternatives.’’) (citation 13 | omitted); Roman v. Smith, No. 2:18-07909 PA (ADS), 2019 WL 8013120, at *1 14 | (C.D. Cal. Nov. 18, 2019). It is also significant that the dismissal is to be without 15 | prejudice. 16 For the foregoing reasons, dismissal of this action, without prejudice, is 17 | appropriate here. 18 IV. CONCLUSION 19 For the reasons discussed above, IT IS HEREBY ORDERED that the case 20 | is DISMISSED without prejudice. Gin VO 22 | Dated: February 15, 2022 23 United States District Judge 24 25 26 27 28