Case 2:21-cv-06656-VAP-MAR Document 15 Filed 07/28/22 Page 1 of 7 Page ID #:105

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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9 10 KENDALL DEJUAN SIMON, Case No. 2:21-cv-06656-VAP (MAR) 11 Plaintiff, MEMORANDUM AND ORDER

DISMISSING CASE

12 v. 13 STATE OF CALIFORNIA, 14 Defendant. 15 16 17 I. 18 INTRODUCTION 19 On August 7, 2021, Kendall Dejuan Simon (“Plaintiff”) proceeding pro se, 20 constructively filed a Complaint (“Complaint”). ECF Docket No. (“Dkt.”) 1. On 21 December 22, 2021, the Court dismissed the Complaint with leave to amend 22 (“ODLA”), granting Plaintiff until January 10, 2022, to either: (1) file a First 23 Amended Complaint (“FAC”); (2) file a notice that he intends to stand on the 24 allegations in the Complaint; or (3) voluntarily dismiss the action. Dkt. 10 at 13. To 25 date, Plaintiff has not filed a FAC. For the reasons below, the Court DISMISSES 26 this action, without prejudice. 27 /// 28 /// Case 2:21-cv-06656-VAP-MAR Document 15 Filed 07/28/22 Page 2 of 7 Page ID #:106

1 II. 2 BACKGROUND 3 On August 7, 2021, Plaintiff proceeding pro se, constructively filed a 4 Complaint. Dkt. 1. On December 22, 2021, the Court dismissed the Complaint with 5 leave to amend, granting Plaintiff until January 10, 2022, to either: (1) file a FAC; (2) 6 file a notice that he intends to stand on the allegations in the Complaint; or (3) 7 voluntarily dismiss the action. Dkt. 10 at 13. The ODLA cautioned Plaintiff that 8 failure to timely file a response to the ODLA “will result” in the dismissal of the 9 Complaint for failure to prosecute. Id. (emphasis in original). 10 Plaintiff failed to file a FAC. On February 9, 2022, the Court issued an Order 11 to Show Cause (“OSC”) why the action should not be dismissed for failure to 12 prosecute. Dkt. 11. The OSC again warned that “failure to respond to the Court’s 13 Order will result in the dismissal of the action. Id. (emphasis in original). On March 14 17, 2022, Plaintiff filed a response to the Order asking for more time and for the 15 Court to send him a complaint form. Dkt. 12. The Court granted Plaintiff’s requests, 16 giving him until April 29, 2022 to file a FAC. Dkt. 13. The Court warned that failure 17 to respond to the Court’s Order will result in the dismissal of the action. Id. 18 (emphasis in original). Plaintiff again failed to file a FAC or otherwise correspond 19 with the Court. 20 On May 24, 2021, this Court issued a second OSC ordering Plaintiff to respond 21 to the Court’s previous Orders. Dkt. 14. The OSC again warned that “failure to 22 respond to the Court’s Order will result in the dismissal of the action. Id. (emphasis 23 in original). Plaintiff has not corresponded with the Court at all since March 17, 2022. 24 III. 25 DISCUSSION 26 A. APPLICABLE LAW 27 District courts have sua sponte authority to dismiss actions for failure to 28 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash 2 Case 2:21-cv-06656-VAP-MAR Document 15 Filed 07/28/22 Page 3 of 7 Page ID #:107

1 R.R. Co., 370 U.S. 626, 629–30 (1962); Hells Canyon Pres. Council v. U.S. Forest 2 Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an action under 3 Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 4 or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. 5 Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering dismissal for failure to 6 comply with court orders). 7 In deciding whether to dismiss for failure to prosecute or comply with court 8 orders, a district court must consider five (5) factors: “(1) the public’s interest in 9 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 10 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases 11 on their merits; and (5) the availability of less drastic sanctions.” Omstead v. Dell, 12 Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 13 1421, 1423 (9th Cir. 1986)). 14 “[The Ninth Circuit] ‘may affirm dismissal where at least four factors support 15 dismissal . . . or where at least three factors “strongly” support dismissal.’” Yourish v. 16 California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (quoting Hernandez v. City of 17 El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). In a case involving sua sponte 18 dismissal, however, the fifth Henderson factor regarding the availability of less drastic 19 sanctions warrants special focus. Hernandez, 138 F.3d at 399. 20 B. ANALYSIS 21 1. The public’s interest in expeditious resolution of litigation 22 In the instant action, the public’s interest in expeditious resolution of litigation 23 weighs in favor of dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 24 2002) (“The public’s interest in expeditious resolution of litigation always favors 25 dismissal.” (quoting Yourish, above) (internal quotation omitted)). Plaintiff has not 26 filed a FAC in compliance with the Court’s December 22, 2021 ODLA or otherwise 27 responded to the Court’s March 31, 2022 or May 24, 2022 Orders. In fact, Plaintiff 28 has not corresponded with the Court at all since he March 17, 2022. Dkt. 12. Given 3 Case 2:21-cv-06656-VAP-MAR Document 15 Filed 07/28/22 Page 4 of 7 Page ID #:108

1 that Plaintiff has failed to interact with the Court for over four (4) months, this factor 2 weighs in favor of dismissal. See Dkt. 12; see also Pagtalunan, 291 F.3d at 642 3 (finding that the plaintiff’s failure to pursue the case for almost four (4) months 4 weighed in favor of dismissal). 5 2. The Court’s need to manage its docket 6 The second factor—the Court’s need to manage its docket—likewise weighs in 7 favor of Dismissal. Courts have “the power to manage their dockets without being 8 subject to the endless vexatious noncompliance of litigants.” See Ferdik, 963 F.2d at 9 1261. As such, the second factor looks to whether a particular case has “consumed . . 10 . time that could have been devoted to other cases on the [Court’s] docket.” See 11 Pagtalunan, 291 F.3d at 642; Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th 12 Cir. 2004) (“[R]esources continue to be consumed by a case sitting idly on the court’s 13 docket.”). 14 On December 22, 2021, the Court issued an ODLA ordering Plaintiff to file a 15 FAC by January 10, 2022. Dkt. 10 at 13. The ODLA cautioned Plaintiff that failure 16 to timely file a response to the ODLA “will result” in the dismissal of the Complaint 17 for failure to prosecute. Id. (emphasis in original). 18 On February 9, 2022, the Court issued an Order to Show Cause (“OSC”) why 19 the action should not be dismissed for failure to prosecute. Dkt. 11. The OSC again 20 warned that “failure to respond to the Court’s Order will result in the dismissal of the 21 action. Id. (emphasis in original). 22 Plaintiff responded, and on March 31, 2022, the Court granted him an 23 extension of time. Dkts. 12, 13. The Court warned that failure to respond to the 24 Court’s Order will result in the dismissal of the action. Dkt. 13. The Court issued a 25 second OSC on May 24, 2022, warning that failure to respond will result in dismissal. 26 Dkt. 14. 27 Plaintiff has failed to comply with any of the Court’s Orders, all of which 28 warned Plaintiff that his failure to comply could or would result in the recommended 4 Case 2:21-cv-06656-VAP-MAR Document 15 Filed 07/28/22 Page 5 of 7 Page ID #:109

1 dismissal of the Complaint. See Dkts. 10 at 13; 11; 13; 14. Plaintiff’s failure to 2 prosecute and follow Court Orders hinders the Court’s ability to move this case 3 toward disposition and suggests Plaintiff does not intend to or cannot litigate this 4 action diligently. Consequently, the Court’s need to manage its docket favors 5 dismissal here. 6 3. The risk of prejudice to Defendant 7 The third factor—prejudice to Defendant(s)—also weighs in favor of dismissal. 8 A rebuttable presumption of prejudice to defendant arises when plaintiffs 9 unreasonably delay prosecution of an action. See In re Eisen, 31 F.3d 1447, 1452–53 10 (9th Cir. 1994) (“[T]he failure to prosecute diligently is sufficient by itself to justify 11 dismissal . . . [t]he law presumes injury from unreasonable delay.”). 12 Nothing suggests such a presumption is unwarranted in this case. Plaintiff has 13 not provided any reason for his failure to comply with either the Court’s ODLA or 14 OSCs and for his failure to communicate with the Court since March 17, 2022. Dkt. 15 12. Given the length of the delay, the Court finds Plaintiff’s delay in prosecuting this 16 case to be unreasonable. Thus, prejudice is presumed and weighs in favor of 17 dismissal. See, e.g., In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d at 18 1227 (“The law . . . presumes prejudice from unreasonable delay.”). 19 4. Public policy favoring disposition on the merits 20 The fourth factor—public policy in favor of deciding cases on the merits— 21 ordinarily weighs against dismissal. See In re Phenylpropanolamine (PPA) Prod. Liab. 22 Litig., 460 F.3d at 1228. Here, as it usually does, the fourth factor weighs against 23 dismissal. It is, however, Plaintiff’s responsibility to move towards disposition at a 24 reasonable pace and avoid dilatory and evasive tactics. See Morris v. Morgan Stanley, 25 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff has not discharged this responsibility 26 despite having been: (1) instructed on his responsibilities; (2) granted sufficient time 27 in which to discharge them; and (3) warned of the consequences of failure to do so. 28 See Dkts. 10 at 13; 11; 13; 14. Under these circumstances, and without any other 5 Case 2:21-cv-06656-VAP-MAR Document 15 Filed 07/28/22 Page 6 of 7 Page ID #:110

1 information from Plaintiff, the policy favoring resolution of disputes on the merits 2 does not outweigh Plaintiff’s failure to obey Court Orders or to file responsive 3 documents within the time granted. 4 5. Availability of less drastic alternatives 5 The fifth factor—availability of less drastic sanctions—also weighs in favor of 6 dismissal. A “district court need not exhaust every sanction short of dismissal before 7 finally dismissing a case, but must explore possible and meaningful alternatives.” 8 Henderson, 779 F.2d at 1424. Less drastic alternatives to dismissal include warning a 9 party that dismissal could result from failure to obey a court order. See Malone, 833 10 F.2d at 132 n.1. Further, “a district court’s warning to a party that his [or her] failure 11 to obey the court’s order will result in dismissal can satisfy the ‘consideration of 12 alternatives’ requirement.” Ferdik, 963 F.2d at 1262 (citations omitted). 13 Here, the Court cannot move the case toward disposition without Plaintiff’s 14 compliance with Court Orders or participation in this litigation. Plaintiff has shown 15 he is either unwilling or unable to comply with Court Orders by filing responsive 16 documents or otherwise cooperating in prosecuting this action. Given this record, the 17 Court finds that any less drastic alternatives to dismissal would be inadequate to 18 remedy Plaintiff’s failures to obey Court Orders and to prosecute. 19 6. Summary 20 Finally, while dismissal should not be entered unless Plaintiff has been notified 21 dismissal is imminent, see W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 22 1523 (9th Cir. 1990), the Court has warned Plaintiff about the potential dismissal in 23 the December 22, 2021 ODLA and in two (3) separate Orders. See Dkts. 10 at 13; 24 11; 13; 14. 25 As discussed above, four (4) of the Rule 41(b) factors weigh in favor of 26 dismissal. Accordingly, this action is subject to dismissal. 27 /// 28 /// 6 Case #:21-cv-06656-VAP-MAR Document 15 Filed 07/28/22 Page 7of7 Page |ID#:111

1 IV. 2 ORDER 3 IT IS THEREFORE ORDERED THAT Petitioner’s case is DISMISSED 4 | without prejudice. 6 Dated: July 28, 2022 he, Phe . 7 Vigne VIRGINIA A. PHIT IPS 9 United States District Judge Presented by: 10 WARCS A-ROCCONTD ul United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28