Case 5:20-cv-02460-MCS-SHK Document 24 Filed 02/18/22 Page 1 of 5 Page ID #:106

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8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 12 STEVE SARAY, Case No. 5:20-cv-02460-MCS-SHK 13 Plaintiff, 14 v.

ORDER DISMISSING CASE

15 RALPH DIAZ, et al., 16 Defendants.

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18 For the following reasons, this case is DISMISSED without prejudice. 19 I. BACKGROUND 20 On November 29, 2021, the Court issued its Report and Recommendation 21 (“R&R”) and Notice of Filing of Report and Recommendation (“R&R Notice”). 22 Electronic Case Filing Number (“ECF No.”) 18, R&R; ECF No. 19, R&R Notice. 23 On December 10, 2021, the R&R and R&R Notice were returned to the Court as 24 undeliverable with a notation that Plaintiff Steve Saray (“Plaintiff”) was 25 “paroled/discharged.” ECF No. 20, Returned R&R at 1 (capitalization normalized); 26 ECF No. 21, Returned R&R Notice at 1 (capitalization normalized). 27 Based on the returned mail, the Court concluded that Plaintiff failed to 28 properly inform the Court of his updated address in violation of Local Rule of Civil Case 5:20-cv-02460-MCS-SHK Document 24 Filed 02/18/22 Page 2 of 5 Page ID #:107

Procedure for the United States District Court for the Central District of California 1 (“Local Rule”) 41-6, which requires a pro se party to keep the Court and opposing 2 parties apprised of the party’s current address, telephone number, and e-mail 3 address, if any. As such, on February 4, 2022, the Court ordered Plaintiff to show 4 cause (“OSC”) by February 11, 2022, why this case should not be dismissed for 5 failure to prosecute, follow Court orders, and follow Local Rule 41-6. ECF No. 22, 6 OSC. Plaintiff was notified that: 7 [i]f mail directed by the Clerk to a pro se plaintiff’s address of record is 8 9 returned undelivered by the Postal Service, and if, within fifteen days of 10 the service date, such plaintiff fails to notify, in writing, the Court and 11 opposing parties of plaintiff’s current address, the Court may dismiss the 12 action with or without prejudice for want of prosecution. 13 Id. at 1. Plaintiff was further notified that Plaintiff could satisfy the OSC “by 14 updating the Court with his current address by the date above.” Id. Plaintiff was 15 also warned that “failing to update the Court with his current address by the above 16 stated deadline will result in a recommendation that this action be dismissed for 17 failure to prosecute.” Id. at 2 (emphasis in original). 18 As of the date of this Order, Plaintiff has failed to update the Court with his 19 current address, respond to the OSC, or otherwise participate in this litigation. 20 II. LEGAL STANDARD 21 District courts have sua sponte authority to dismiss actions for failure to 22 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash 23 R.R. Co., 370 U.S. 626, 629-30 (1962); Hells Canyon Pres. Council v. U.S. Forest 24 Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an action under 25 Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 26 or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. 27 Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering dismissal for failure to 28 comply with court orders). 2 Case 5:20-cv-02460-MCS-SHK Document 24 Filed 02/18/22 Page 3 of 5 Page ID #:108

In deciding whether to dismiss for failure to prosecute or comply with court 1 orders, a district court must consider five factors: “(1) the public’s interest in 2 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 3 risk of prejudice to the defendants; (4) the public policy favoring disposition of 4 cases on their merits; and (5) the availability of less drastic sanctions.” Henderson 5 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also Pagtalunan v. Galaza, 291 6 F.3d 639, 642 (9th Cir. 2002) (setting out five factors similar to those in Henderson). 7 “Dismissal is appropriate ‘where at least four factors support dismissal, or where at 8 9 least three factors ‘strongly’ support dismissal.’” Neal v. Reslan, No. CV 19-09291 10 PA (ASx), 2020 WL 754366, at *1 (C.D. Cal. Jan. 16, 2020) (quoting Hernandez v. 11 City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (internal citations omitted) 12 (citing Ferdik, 963 F.2d at 1263)). In a case involving sua sponte dismissal, 13 however, the fifth Henderson factor regarding the availability of less drastic 14 sanctions warrants special focus. Hernandez, 138 F.3d at 399. 15 III. DISCUSSION 16 Here, the first two factors—public interest in expeditious resolution of 17 litigation and the Court’s need to manage its docket—weigh in favor of dismissal. 18 Despite being warned in the OSC that failure to update the Court with his address 19 “will result in a recommendation that this action be dismissed for failure to 20 prosecute[,]” Plaintiff has failed to do so. ECF No. 22, OSC at 2 (emphasis in 21 original). This failure to prosecute and follow Court orders hinders the Court’s 22 ability to move this case toward disposition and suggests that Plaintiff does not 23 intend to litigate this action diligently. 24 The third factor—prejudice to Defendant—also weighs in favor of dismissal. 25 A rebuttable presumption of prejudice to a defendant arises when a plaintiff 26 unreasonably delays prosecuting an action. See In re Eisen, 31 F.3d 1447, 1452-53 27 (9th Cir. 1994) (citations omitted). Nothing suggests such a presumption is 28 unwarranted in this case, considering that Plaintiff has failed to comply with the 3 Case 5:20-cv-02460-MCS-SHK Document 24 Filed 02/18/22 Page 4 of 5 Page ID #:109

Court’s OSC or offer any excuse for his failure to comply with the Court’s OSC or 1 to respond in a timely manner. Thus, this “prejudice” element favors dismissal. 2 The fourth factor—public policy in favor of deciding cases on the merits— 3 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to move 4 litigation towards disposition at a reasonable pace and to avoid dilatory and evasive 5 tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff 6 has not met this responsibility despite having been: (1) instructed on his 7 responsibilities; (2) granted sufficient time in which to discharge them; and 8 9 (3) warned of the consequences of failure to do so. Under these circumstances, 10 though this policy favors Plaintiff, it does not outweigh Plaintiff’s failure to obey 11 Court orders or to file responsive documents within the time granted. 12 The fifth factor—availability of less drastic sanctions—also weighs in favor 13 of dismissal. The Court cannot move the case toward disposition without Plaintiff’s 14 compliance with Court orders or participation in this litigation. Despite the Court’s 15 attempt to obtain a response, Plaintiff has shown he is either unwilling or unable to 16 comply with Court orders by failing to file responsive documents, update the Court 17 with his current address, or otherwise cooperate in prosecuting this action. Thus, the 18 Court is not aware of any lesser sanction that is available in this case. See 19 Henderson, 779 F.2d at 1424 (“The district court need not exhaust every sanction 20 short of dismissal before finally dismissing a case but must explore possible and 21 meaningful alternatives.”) (citation omitted); Roman v. Smith, No. 2:18-07909 PA 22 (ADS), 2019 WL 8013120, at *1 (C.D. Cal. Nov. 18, 2019). 23 Accordingly, dismissal of this action, without prejudice, is appropriate here. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 4 Case 4:20-cv-02460-MCS-SHK Document 24 Filed 02/18/22 Pagebof5 Page ID#:110

1 IV. CONCLUSION 2 For the reasons discussed above, IT IS HEREBY ORDERED that the case 3 | is DISMISSED without prejudice. Mabe. See: | Dated: February 18, 2022 HONOKABLEAT □□□ 6 United States District Judge 7 | Presented by: 8 Wee ye 9 | HONORABLE SHASHI H. KEWALRAMANI > 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28