1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CLARENCE DEMETRIUS TATE, Case No. 2:22-cv-06464-MEMF-PD 12 et al. ORDER DISMISSING ACTION FOR

FAILURE TO PROSECUTE

13 Plaintiffs, 14 v. 15 VALERIE HORN, et al. 16 Defendants. 17 18

I. Pertinent Procedural History and Plaintiff’s Claims

19 On September 9, 2022, Plaintiffs Clarence Tate, William Marshall, Earle Jones, Kumi 20 Kawamura, and Susana Osoy (collectively “Plaintiffs”), proceeding pro se, filed a Complaint 21 pursuant to 42 U.S.C. § 1983.1 [Dkt. No. 1.] The Complaint alleges that Defendants Valerie Horn, Kylale, LLC, Hasty Yadegaran, Freddy Anaraki, 2401 MLK, LLC, Daum Commercial 22 Real Estate Services, William Michalak, City of Los Angeles, Doe Supervisor, and Does 1-10 23 (collectively “Defendants”) violated several of Plaintiffs’ civil rights guaranteed under the U.S. 24 Constitution and the California Constitution. [Id. at 1-2.] It further alleges that Defendants 25 committed various crimes under the Racketeer Influenced and Corrupt Organizations Act 26 27 1 Plaintiff Osoy is listed on the cover page and under the parties section of the Complaint; however, the 28 1 (“RICO”), violations of California Civil Code § 52.1 (“the Bane Act”), and common law tort 2 claims.2 [Id.] 3 The factual allegations largely center around a property located at 2401 W Martin Luther King Blvd., Los Angeles, CA, 90008 (“the Property”) that Plaintiff Tate leased. [Id. at 2.] It is 4 unclear from the Complaint whether Defendants Kylale, LLC, or Daum Real Estate Services, or 5 2401 MLK, LLC is the lessor/owner of the Property.3 At an unspecified date, Defendant 6 Michalak, his Doe supervisor, and Defendant Anaraki entered the Property without permission of 7 Plaintiffs, but with permission of the owner. [Id. at 2.] Plaintiffs allege the above Defendants 8 conducted a warrantless search of the Property, and the search was motivated to cover up the fact 9 that the Property was in dangerous condition. [Id.] Plaintiffs allege that the search violated their Fourth Amendment rights under the U.S. Constitution and their rights under the analogous 10 provisions of the California Constitution. [Id. at 9.] 11 The Complaint contains additional allegations regarding Plaintiff Tate’s access to court 12 documents in a pending civil case filed in the California Superior Court. [Id. at 2-4.] It further 13 alleges that Defendants violated the California Bane Act by using threats of arrest and 14 intimidation to interfere with Plaintiffs’ rights to be secure in their property. [Id. at 11.] There 15 are no allegations that Defendants threatened to arrest Plaintiffs.4 Last, Plaintiffs make several claims under RICO §§ 1961, 1962. [Id. at 11-13.] As best as the Court can determine, Plaintiffs 16 allege that the above-described alleged actions of the Defendants concerning the Property indicate 17 an overall conspiracy and pattern of racketeering. [Id.] 18 On November 7, 2022, the Court screened the Complaint pursuant to 28 U.S.C. § 19 1915(e)(2)(B)(ii) and found that it failed to state a cognizable claim against any named defendant, 20 as required by Rule 8 of the Federal Rules of Civil Procedure. [Dkt. No. 10.] The Court 21 dismissed the Complaint with leave to amend and advised Plaintiffs that if they wished to pursue this action, they were to file a first amended complaint that corrected the defects identified by the 22 Court in its order no later than December 9, 2022. [Id.] 23 On December 9, 2022, Plaintiffs filed a request to extend the deadline to file a first 24

25 2 The cover page lists that Plaintiffs are bringing common law tort claims. However, there are no tort 26 claims alleged in the Complaint. 3 It is also unclear if there is more than one property relevant to the allegations made in the Complaint and 27 if any other Plaintiffs are the lessees. 4 Plaintiffs also allege the Defendants violated Mitchell and Coleman’s rights to be free from false arrest. 28 However, neither Mitchell nor Coleman is named as a Plaintiff in the Complaint, nor are there any facts 1 amended complaint by five days. [Dkt. No. 11.] On December 20, 2022, the Court issued an 2 order extending the deadline to file a first amended complaint to January 6, 2023. [Dkt No. 12.] 3 On January 6, 2023, Plaintiffs filed a request for a second extension of the deadline to file a first amended complaint. [Dkt Nos. 13, 14.] This request contained the declaration of Plaintiff 4 Clarence Tate that he had completed a first amended complaint and expected to have it filed by 5 January 15, 2023. [Id.] On January 11, 2023, the Court issued an order granting the request for a 6 second extension of time and set the deadline to file a first amended complaint on January 20, 7 2023. [Dkt. No. 15.] The Order stated that absent extraordinary circumstances, no further 8 extension of time to file a first amended complaint would be granted. [Id.] 9 On January 24, 2023, Plaintiffs filed a request for a third extension of time, to January 31, 2023, to file a first amended complaint. [Dkt. No. 16.] On January 26, 2023, the Court issued an 10 order granting the third request for extension of time and set the deadline to file the first amended 11 complaint on January 31, 2023. [Dkt. No. 17.] The Order stated that if a first amended complaint 12 was not filed by January 31, 2023, the Court would recommend that this action be dismissed. 13 To date, Plaintiff has not filed a first amended complaint or otherwise communicated with 14 the Court since January 24, 2023. Accordingly, the case is now subject to dismissal for failure to 15 prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and Local Rule 41-6.

II. Discussion

16 Rule 41(b) grants district courts the authority to sua sponte dismiss actions for failure to 17 prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962). In determining whether 18 dismissal for lack of prosecution is warranted, a court must weigh several factors, including: (1) 19 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 20 docket; (3) the risk of prejudice to defendants; (4) the availability of less drastic sanctions; and (5) 21 the public policy favoring the disposition of cases on their merits. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). 22 Dismissal is appropriate under the foregoing analysis “where at least four factors support 23 dismissal ... or where at least three factors ‘strongly’ support dismissal.” Hernandez v. City of El 24 Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations omitted). 25 In this case, the first two factors – public interest in expeditious resolution of litigation and 26 the need to manage the Court’s docket – weigh in favor of dismissal. Plaintiffs did not file a first 27 amended complaint on time even after numerous extension requests were granted. Plaintiffs’ 28 failure to file an amended complaint—or show good cause for their delay—prevents the Court 1 from moving this case toward disposition and shows that Plaintiffs do not intend to litigate this 2 action diligently. 3 Arguably, the third factor – prejudice to Defendants – also counsels in favor of dismissal because Defendants in this case have been served. [Dkt. Nos. 4, 5, 6, 7, 8, 9.] Further, the Ninth 4 Circuit has held that prejudice may be presumed from unreasonable delay. See In re Eisen, 31 5 F.3d 1447, 1452-53 (9th Cir. 1994); Moore v. Teflon Commc’ns. Corp., 589 F.2d 959, 967-68 6 (9th Cir. 1978). Plaintiffs’ inaction in this matter is an unreasonable delay. In the absence of any 7 explanation, non-frivolous or otherwise, for Plaintiffs’ delay, the Court presumes prejudice. See 8 Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002) (presumption of prejudice can 9 be rebutted by a non-frivolous explanation); Pagtalunan, 291 F.3d at 642 (citing Yourish v. California Amplifier, 191 F.3d 983, 991 (9th Cir. 1999)). 10 The fourth factor – the availability of less drastic sanctions – ordinarily counsels against 11 dismissal. However, the Court attempted to avoid outright dismissal by giving Plaintiffs ample 12 time to communicate with the Court and file an amended complaint. Plaintiffs were also 13 expressly warned that failure to comply with the Court’s orders could result in dismissal. [Dkt. 14 Nos. 12, 15, 17.] Thus, the Court explored the only meaningful alternatives to dismissal in its 15 arsenal and found that they were not effective. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (“The district court need not exhaust every sanction short of dismissal before 16 finally dismissing a case, but must explore possible and meaningful alternatives.”) (citation 17 omitted). 18 The fifth factor – the general policy favoring resolution on the merits – ordinarily weighs 19 against dismissal. Pagtalunan, 291 F.3d at 643. It is, however, the responsibility of the moving 20 party to move the case toward disposition on the merits at a reasonable pace and to refrain from 21 dilatory and evasive tactics. Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991). Because Plaintiffs have failed to diligently participate in their lawsuit, retention of this case would 22 not increase the likelihood of the matter being resolved on its merits. This factor does not weigh 23 in favor of or against dismissal. 24 In sum, four out of the five factors support dismissal. The Court concludes that dismissal 25 for failure to prosecute is warranted. 26 / / / 27 / / / 28 / / / 1 For the foregoing reasons, this action is dismissed for failure to prosecute. 2 || ITISSO ORDERED. 3 4 ll Dated: July 5, 2023 frac 5 EWUSI-MENSAH FRIMPONG 6 nited States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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