1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TODD TEI, Case No. 2:20-cv-06559-JAK (MAA) 12 Plaintiff, 13 ORDER OF DISMISSAL v. 14

LOS ANGELES DEPARTMENT

15 OF CHILD AND FAMILY 16 SERVICES et al., 17 Defendants. 18 19 I. SUMMARY OF FACTS AND PROCEEDINGS 20 On July 23, 2020, Plaintiff Todd Tei (“Plaintiff”), proceeding pro se, filed a 21 Complaint alleging violations of his civil rights pursuant to 42 U.S.C. § 1983. 22 (Compl., ECF No. 1.) On July 27, 2020, the Court issued an Order dismissing the 23 Complaint for failure to comply with Federal Rule of Civil Procedure 8, with leave 24 to file a First Amended Complaint (“FAC”) by August 26, 2020. (Order, ECF No. 25 5.) The Order “advised that failure to comply with this order w[ould] result in a 26 recommendation that the lawsuit be dismissed without prejudice for failure to 27 prosecute and/or comply with court orders. See Fed. R. Civ. P. 41(b); C.D. Cal. 28 L.R. 41-1.” (Id. at 4.) 1 On September 14, 2020, in the absence of a filed FAC, the Court issued an 2 Order to Show Cause (“OSC”), ordering Plaintiff to show cause by October 14, 3 2020 why the Court should not recommend that the case be dismissed for want of 4 prosecution. (OSC, ECF No. 6.) The OSC stated that if Plaintiff filed a FAC or 5 dismissed the case before that date, the OSC would be discharged. (Id.) The OSC 6 “advised that failure to comply with this order w[ould] result in a 7 recommendation that the lawsuit be dismissed without prejudice for failure to 8 prosecute and/or comply with court orders. See Fed. R. Civ. P. 41(b); C.D. Cal. 9 L.R. 41-1.” (Id.) The OSC was returned to the Court as undeliverable on October 10 19, 2020. (ECF No. 7.) 11 To date, Plaintiff has failed to file a FAC, failed to respond to either the Order 12 or OSC, and has not updated his address with the Court. Indeed, Plaintiff has not 13 communicated with the Court since filing the lawsuit on July 23, 2020. 14 15 II. LEGAL STANDARD 16 Central District of California Local Rule 41-6 states: 17 A party proceeding pro se shall keep the Court and opposing parties apprised 18 of such party’s current address and telephone number, if any, and e-mail 19 address, if any. If mail directed by the Clerk to a pro se plaintiff’s address of 20 record is returned undelivered by the Postal Service, and if, within fifteen (15) 21 days of the service date, such plaintiff fails to notify, in writing, the Court and 22 opposing parties of said plaintiff’s current address, the Court may dismiss the 23 action with or without prejudice for want of prosecution. 24 C.D. Cal. L.R. 41-6. 25 District courts may dismiss cases sua sponte for failure to prosecute or for 26 failure to comply with a court order under Federal Rule of Civil Procedure 41(b). 27 Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005); 28 see also Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) (holding that the 1 court has “inherent power” to dismiss cases sua sponte for lack of prosecution). 2 Unless the Court states otherwise, a dismissal under Rule 41(b) operates as an 3 adjudication on the merits. Fed. R. Civ. P. 41(b). “Dismissal is a harsh penalty and 4 is to be imposed only in extreme circumstances.” In re: Phenylpropanolamine 5 (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. 6 USPS, 833 F.2d 128, 130 (9th Cir. 1987)). 7 “A Rule 41(b) dismissal ‘must be supported by a showing of unreasonable 8 delay.’” Omstead v. Dell, 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson 9 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). In addition, the court must weigh 10 the following factors in determining whether a Rule 41(b) dismissal is warranted: 11 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 12 to manage its docket; (3) the risk of prejudice to the defendants/respondents; (4) the 13 availability of less drastic alternatives; and (5) the public policy favoring disposition 14 of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 15 The Ninth Circuit will “affirm a dismissal where at least four factors support 16 dismissal, or where at least three factors strongly support dismissal.” Dreith v. Nu 17 Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011) (quoting Yourish v. Cal. Amplifier, 18 191 F.3d 983, 990 (9th Cir. 1999)). Finally, “in order to warrant a sanction of 19 dismissal, the party’s violations of the court’s orders must be due to wilfulness or 20 bad faith.” Id. 21 22 III. ANALYSIS 23 A. The Public’s Interest in Expeditious Resolution and the Court’s 24 Need to Manage Its Docket 25 The first and second factors (the public’s interest in expeditious resolution of 26 litigation and the Court’s need to manage its docket)1 weigh in favor of dismissal. 27 1 The first two factors are usually reviewed together “to determine if there is an 28 unreasonable delay.” In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994). 1 “Orderly and expeditious resolution of disputes is of great importance to the rule of 2 law.” In re: Phenylpropanolamine, 460 F.3d at 1227. “The public’s interest in 3 expeditious resolution of litigation always favors dismissal.” Pagtalunan, 291 F.3d 4 at 642 (quoting Yourish, 191 F.3d at 990). In addition, district courts “have an 5 inherent power to control their dockets,” In re: Phenylpropanolamine, 460 F.3d at 6 1227 (quoting Thompson v. Hous. Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir. 7 1986)), and “are best suited to determine when delay in a particular case interferes 8 with docket management and the public interest.” Yourish, 191 F.3d at 990 (quoting 9 Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)). 10 Plaintiff has failed to file a FAC or otherwise respond to the Order or OSC, 11 has failed to update his mailing address, and has not otherwise participated in this 12 lawsuit since filing the Complaint on July 23, 2020. The Court concludes that 13 Plaintiff’s inaction and lack of communication with the Court constitute willful 14 unreasonable delay. See Thomas v. Maricopa Cnty. Jail, 265 F. App’x. 606, 607 15 (9th Cir. 2008) (holding that district court did not abuse its discretion by dismissing 16 pro se prisoner lawsuit for failure to respond to a court order for almost three 17 months). Plaintiff’s noncompliance also interferes with the public’s interest in the 18 expeditious resolution of this litigation and hinders the Court’s ability to manage its 19 docket. See In re: Phenylpropanolamine, 460 F.3d at 1227 (“[The Ninth Circuit] 20 defer[s] to the district court’s judgment about when a delay becomes unreasonable 21 ‘because it is in the best position to determine what period of delay can be endured 22 before its docket becomes unmanageable.”) (quoting In re Eisen, 31 F.3d at 1451)). 23 The first and second factors favor dismissal. 24 25 B. Risk of Prejudice to Defendants 26 The third factor (risk of prejudice to the defendants) also weighs in favor of 27 dismissal. “A defendant suffers prejudice if the plaintiff’s actions impair the 28 defendant’s ability to go to trial or threaten to interfere with the rightful decision of 1 the case.” In re: Phenylpropanolamine, 460 F.3d at 1227 (quoting Adriana Int’l 2 Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990)). “The law also presumes 3 prejudice from unreasonable delay.” Id. The risk of prejudice to a defendant is 4 related to a plaintiff’s reason for failure to prosecute an action. Pagtalunan, 291 5 F.3d at 642. “Whether prejudice is sufficient to support an order of dismissal is in 6 part judged with reference to the strength of the plaintiff’s excuse for the default.” 7 Malone, 833 F.2d at 131. 8 Plaintiff continuously has refused to file a FAC without explanation. As 9 Plaintiff has not updated his address with the Court, the Court cannot ascertain 10 Plaintiff’s reason for failing to prosecute this lawsuit or comply with Court orders. 11 See Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (“It would be absurd to 12 require the district court to hold a case in abeyance indefinitely just because it is 13 unable, through the plaintiff’s own fault, to contact the plaintiff to determine if his 14 reasons for not prosecuting his lawsuit are reasonable or not.”) As “a presumption 15 of prejudice arises from the plaintiff’s unexplained failure to prosecute,” the third 16 factor favors dismissal. See Hernandez v. City of El Monte, 138 F.3d 393, 400 (9th 17 Cir. 1998). 18 19 C. Availability of Less Drastic Alternatives 20 The fourth factor (the availability of less drastic alternatives) also supports 21 dismissal. “The district court need not exhaust every sanction short of dismissal 22 before finally dismissing a case, but must explore possible and meaningful 23 alternatives.” Henderson, 779 F.2d at 1424. 24 The Court considered and implemented less drastic alternatives prior to 25 dismissal. The Court twice explicitly warned Plaintiff that failure to file a FAC 26 would result in a recommendation that the action be dismissed for failure to 27 prosecute and/or failure to comply with Court orders pursuant to Federal Rule of 28 Civil Procedure 41(b). (Order 4; OSC 1.) See In re: Phenylpropanolamine, 460 1 F.3d at 1229 (“Warning that failure to obey a court order will result in dismissal can 2 itself meet the ‘consideration of alternatives’ requirement.”). The Court also 3 extended Plaintiff’s deadline to file a FAC from August 26, 2020 to October 14, 4 2020. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (holding that the 5 district court’s allowance of an additional thirty days for plaintiff to file an amended 6 complaint was an attempt at a less drastic sanction). As Plaintiff has not provided 7 his updated address to the Court, no alternatives to dismissal currently are available. 8 See Carey, 856 F.2d at 1441 (concluding that there was no less drastic sanction 9 available than dismissal where mail addressed to plaintiff was returned by the post 10 office as undeliverable and plaintiff did not provide updated address to court). The 11 fourth factor weighs in favor of dismissal. 12 13 D. Public Policy Favoring Disposition on the Merits 14 As to the fifth factor, “[p]ublic policy favors disposition of cases on the 15 merits.” Pagtalunan, 291 F.3d at 643. However, “a case that is stalled or 16 unreasonably delayed by a party’s failure to comply with deadlines . . . cannot move 17 toward resolution on the merits.” In re: Phenylpropanolamine, 460 F.3d at 1228. 18 Thus, “this factor lends little support to a party whose responsibility it is to move a 19 case towards disposition on the merits but whose conduct impedes progress in that 20 direction.” Id. (internal quotation marks omitted). The case has been stalled by 21 Plaintiff’s failure to file a FAC, otherwise respond to the Order or OSC, or update 22 his address with the Court. Still, the public policy favoring the resolution of disputes 23 on the merits is strong and, under the circumstances, outweighs Plaintiff’s 24 noncompliance and inaction. 25 26 E. Dismissal Without Prejudice 27 In summary, Plaintiff’s failure to file a FAC or otherwise respond to the Order 28 or OSC, failure to update his mailing address, and failure to otherwise participate in 1 || this lawsuit since filing the Complaint constitute willful unreasonable delay. Four o 2 || the Rule 41(b) dismissal factors weigh in favor of dismissal, whereas only one facto: 3 || weighs against dismissal. “While the public policy favoring disposition of cases on 4 || their merits weighs against [dismissal], that single factor is not enough to preclude 5 || imposition of this sanction when the other four factors weigh in its favor.” Rio 6 || Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). The Court 7 || concludes that dismissal of this action for failure to prosecute and to comply with 8 || Court orders is warranted, but, consistent with Rule 41(b) and this Court’s exercise 9 || of its discretion, the dismissal is without prejudice. 10 11 | IV. CONCLUSION 12 IT THEREFORE IS ORDERED that this lawsuit is DISMISSED without 13 || prejudice. No further filings shall be accepted under this case number. 14 15 16 | DATED: October 30, 2020 C hn NW 17 JOHN A. KRONSTADT

UNITED STATES DISTRICT JUDGE

18 || Presented by: 19 20 ye >] ARIA A. AUDERO

UNITED STATES MAGISTRATE JUDGE

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