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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION

11 ARGONAUT INSURANCE ) Case No.: SACV 23-00881-CJC (KESx) ) 12 COMPANY, ) ) 13 ) ORDER DISMISSING ACTION Plaintiff, ) WITHOUT PREJUDICE FOR LACK 14 ) OF PROSECUTION v. ) 15 ) ) 16 ONE CURA WELLNESS INC. and )

CHARLES ELDRIDGE, )

17 ) ) 18 Defendants. ) ) 19 ) 20 21 On May 19, 2023, Plaintiff Argonaut Insurance Company filed this case seeking a 22 declaration that it has no obligation to defend or indemnify Defendants One Cura 23 Wellness Inc. and Charles Eldridge in litigation proceeding in Oklahoma federal court. 24 (Dkt. 1 [Complaint].) Plaintiff served Defendants with the Complaint in June 2023. 25 (Dkt. 13 at 2.) On July 13, 2023, the parties stipulated to extend Defendants’ deadline to 26 file responsive pleadings to October 18, 2023. (Id.) On October 19, 2023, the Court 27 issued an order to show cause (“OSC”) regarding dismissal for lack of prosecution noting 1 Plaintiff failed to take any action. (Dkt. 14.) The Court noted that an appropriate 2 response to the OSC would include (1) Plaintiff’s request for entry of default or 3 Defendants’ responsive pleadings, (2) a stipulation extending Defendants’ time to 4 respond to the Complaint, or (3) a notice of voluntary dismissal. (Id.) On October 23, 5 2023, the parties filed a second stipulation further extending Defendants’ time to file 6 responsive pleadings to December 4, 2023. (Dkt. 15.) The Court approved that 7 stipulation. (Dkt. 16.) Again, nothing was filed by the relevant date. Accordingly, the 8 Court issued a second OSC regarding dismissal for lack of prosecution noting that the 9 second stipulated deadline for Defendants to file responsive pleadings had passed and 10 Plaintiff again failed to take any action. (Dkt. 17.) The Court ordered Plaintiff to 11 respond to the second OSC by December 8, 2023 and admonished that “[f]ailure to file a 12 timely and appropriate response to this Order may result in dismissal.” (Id.) Five days 13 after the deadline to respond to the second OSC, neither party has filed anything. 14 Plaintiff’s failure to diligently prosecute this case means that in nearly seven months, the 15 case has not meaningfully progressed at all. 16 17 District courts “have inherent power to control their dockets and may impose 18 sanctions, including dismissal, in the exercise of that discretion.” Oliva v. Sullivan, 958 19 F.2d 272, 273 (9th Cir. 1992). When determining “whether to dismiss a claim for failure 20 to prosecute or failure to comply with a court order, the Court must weigh the following 21 factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 22 to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the 23 availability of less drastic alternatives; and (5) the public policy favoring disposition of 24 cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 25 26 These factors support dismissal. As to the first factor, “[t]he public’s interest in 27 expeditious resolution of litigation always favors dismissal.” Yourish v. Cal. Amplifier, 1 incumbent upon the Court to manage its docket without being subject to routine 2 noncompliance of litigants.” Pagtalunan, 291 F.3d at 642. The Court has had to issue 3 two OSCs to encourage Plaintiff to comply with its responsibility to prosecute its case 4 diligently, and the second OSC produced no results. The third factor, the risk of 5 prejudice to defendants, at least marginally favors dismissal given Plaintiff’s 6 unreasonable delay. See Neerman v. Cates, 2023 WL 6787455, at *2 (C.D. Cal. Aug. 31, 7 2023) (“While pendency of a lawsuit is not sufficiently prejudicial in and of itself to 8 warrant dismissal, unreasonable delay creates a presumption of prejudice.”) (cleaned up). 9 Fourth, the public policy favoring disposition on the merits generally weighs against 10 dismissal, but “it logically rests upon an inherent presumption a litigant . . . has 11 manifested a diligent desire to prosecute his or her claims.” Ewing v. Ruano, 2012 WL 12 2138159, at *2 (C.D. Cal. June 12, 2012). Indeed, “it is the plaintiff’s responsibility to 13 move a case toward a merits disposition.” Thomas v. Kernan, 2019 WL 8888200, at *1 14 (C.D. Cal. July 10, 2019) (citing Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th 15 Cir. 1991)). Plaintiff’s failure to follow up on Defendants’ failure to file timely 16 responsive pleadings or to respond to the Court’s second OSC by the deadline 17 undermines the strength of the public policy favoring disposition on the merits. See 18 Ewing, 2012 WL 2138159, at *2. 19 20 Finally, the Court’s attempt at less drastic alternatives failed. “[A] district court’s 21 warning to a party that his or her failure to obey the court’s order will result in dismissal 22 can satisfy the ‘consideration of alternatives’ requirement.” Ferdik, 963 F.2d at 1262; see 23 Alliant Credit Union, 2010 WL 3746727, at *2 (“The Court’s prior order warned Plaintiff 24 that the failure to file an amended complaint or a notice of voluntary dismissal would 25 result in the dismissal of the action.”). The Court warned Plaintiff that failure to respond 26 to the second OSC would result in dismissal, yet it still failed to respond. (Dkt. 17.) 27 1 Taken together, the relevant factors weigh in favor of dismissal. Cf Ferdik v. 2 || Bonzelet, 963 F.2d 1258, 1263 (“Even if the prejudice factor as well as the fifth factor 3 ||regarding the public policy favoring disposition on the merits both weighed against 4 || dismissal, they would not outweigh the other three factors that strongly support dismissal 5 ||here.”’). Indeed, courts regularly dismiss cases when a plaintiff fails to seek appropriate 6 relief after a defendant fails to file a responsive pleading by a deadline. See, e,g., 7 || Neerman, 2023 WL 6787455, at *2; Merriam v. Weltman Weinberg & Reis Co., 2021 8 || WL 4699185, at *1 (C.D. Cal. July 14, 2021); Bereswill v. Clutchpoints, Inc., 2021 WL 9 114775988, at *1 (C.D. Cal. June 29, 2021). Accordingly, this action is hereby 10 || DISMISSED WITHOUT PREJUDICE for lack of prosecution and for failure to 11 || comply with the Court’s second OSC. 12 13 DATED: December 13, 2023 je ge 14 _f(. (aS 15 CORMAC J. CARNBY 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28