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

11 JOSEPH BERRY, ) Case No.: 1:20-cv-1725 JLT SKO ) 12 Plaintiffs, ) ORDER GRANTING DEFENDANT’S MOTION ) TO DISMISS 13 v. ) ) (Doc. 30) 14 PRAXAIR DISTRIBUTION, INC., ) ) 15 Defendant. ) ) 16

17 Joseph Berry asserts that there was a step in the handicap exit at Praxair Distribution Inc.’s 18 location, which did not comply with the Americans with Disabilities Act. Berry asserts this step 19 caused him to slip and fall, which caused him injury. (See Doc. 3-1 at 5.) 20 Praxair seeks dismissal of the action pursuant to Rule 41 of the Federal Rules of Civil 21 Procedure. (Doc. 30.) Berry has not opposed the motion. The Court finds the matter suitable for 22 decision without oral arguments, and no hearing date will be set pursuant to Local Rule 230(g) and 23 General Order 618. Because Berry failed to take action to prosecute this action and failed to comply 24 with several orders of this Court, the motion to dismiss is GRANTED. 25 I. Procedural History 26 Berry initiated this action by filing a complaint for personal injuries in Fresno County Superior 27 Court, Case No. 20CECG03205, on October 29, 2020. (Doc. 3-1 at 2.) Praxair filed a Notice of 28 Removal on December 4, 2020 (Doc. 7), thereby initiating the matter before this Court. 1 The Court issued its new civil case documents on December 8, 2020, including its “Order 2 Setting Mandatory Scheduling Conference,” which informed the parties that a conference with the 3 Court was set for February 25, 2021. (Doc. 8 at 1.) The Court directed the parties to prepare a Joint 4 Scheduling Report in advance of the conference, and indicated “[a]ttendance at the Scheduling 5 Conference is mandatory upon each party not represented by counsel or by retained counsel.” (Id. at 2, 6 emphasis in original.) In addition, the Court informed the parties that terminating sanctions, including 7 dismissal, may result “[s]hould counsel or a party appearing pro se fail to appear at the mandatory 8 scheduling conference, or fail to appear at the mandatory scheduling conference, or fail to comply with 9 the directions….” (Id. at 6, emphasis omitted.) 10 On February 18, 2021, Praxair filed a Rule 26 Scheduling Report, and informed the Court that 11 Berry did not respond to a request for information for the report. (Doc. 11 at 1.) Berry did not appear 12 at the scheduling conference, so the Court continued it. (Doc. 13.) At that time, the Court ordered: 13 “Failure to comply with this order may be grounds for the imposition of sanctions on… any party or 14 parties who cause non-compliance with this order.” (Id.) Again, Berry failed to appear at the 15 conference, so the Court continued the matter again. (Doc. 16.) 16 At the continued conference, Berry appeared telephonically. (Doc. 18.) The Court issued the 17 scheduling order soon thereafter, which set the deadlines governing the action. (Doc. 19.) The Court 18 ordered the parties to exchange initial disclosures no later than April 9, 2021. (Id. at 1, 2.) In addition, 19 the Court ordered the parties to complete non-expert discovery no later than September 30, 2021. (Id. 20 at 1, 3.) Praxair reports that to date, it has not received initial disclosures from Berry or responses to 21 the discovery requests Praxair served on March 24, 2021. (Doc. 30-1 at 3.) 22 The Court ordered the parties to file a joint statement proposing settlement conference dates on 23 October 28, 2021, noting they had failed to comply with this instruction from the Scheduling Order. 24 (Doc. 22.) In addition, the Court indicated: “Failure to comply with this order may be grounds for 25 the imposition of sanctions on any and all counsel as well as any party or parties who cause non- 26 compliance with this order.” (Id., emphasis in original.) On November 12, 2021, Praxair filed a 27 status report and reported “Defense Counsel unsuccessfully attempted to meet and confer in writing and 28 by telephone with [Berry] regarding proposed settlement conference dates.” (Doc. 27 at 1, emphasis 1 omitted.) In addition, Praxair requested the Court “order Plaintiff to comply with Rule 26 and prior 2 Court orders,” and requested permission to proceed with motions to compel discovery. (Doc. 27 at 2.) 3 However, the magistrate judge did not issue an order in response to the requests made in the status 4 report. 5 On February 18, 2022, Praxair filed the motion to dismiss for lack of prosecution now pending 6 before the Court. (Doc. 30.) According to Praxair, the company informed Berry of its intent to file a 7 motion to dismiss for lack of prosecution prior to the filing of the motion. (Doc. 30-1 at 6, citing 8 Nissen Decl. ¶ 24 [Doc. 30-2 at 6].) Praxair did not receive a response from Berry (id.), and no 9 opposition to the motion to dismiss was filed with the Court. 10 II. Failure to Prosecute and Obey the Court’s Orders 11 Pursuant to Rule 41 of the Federal Rules of Civil Procedure, "If [a] plaintiff fails to prosecute 12 or to comply with . . . a court order, a defendant may move to dismiss the action or any claim against 13 it. Fed. R. Civ. P. 41(b). Likewise, this Court’s Local Rules provide: “Failure of counsel or of a party 14 to comply with . . . any order of the Court may be grounds for the imposition by the Court of any and 15 all sanctions . . . within the inherent power of the Court.” LR 110. 16 The Ninth Circuit explained, “District courts have inherent power to control their dockets,” and 17 in exercising that power, a court may impose sanctions including dismissal of an action. Thompson v. 18 Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action 19 with prejudice based upon a party’s failure to obey a court order, failure to prosecute an action, or 20 failure to comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 21 1992) (dismissal for failure to comply with an order requiring amendment of complaint); Malone v. 22 U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court 23 order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute). 24 III. Discussion and Analysis 25 To determine whether to dismiss for failure to prosecute and failure to comply with Court 26 orders, the Court must consider several factors, including: "(1) the public's interest in expeditious 27 resolution of litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice to the 28 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability 1 of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61; 2 Thomspon, 782 F.2d at 831. 3 A. Public interest and the Court’s docket 4 In the case at hand, the public’s interest in expeditiously resolving this litigation and the 5 Court’s interest in managing the docket weigh in favor of dismissal. See Yourish v. Cal. Amplifier, 6 191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always 7 favors dismissal”); Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent interest in 8 managing their dockets without being subject to noncompliant litigants). This Court cannot, and will 9 not hold, this case in abeyance based upon Berry’s failure to comply with the Court’s ordered 10 deadlines and failure to take action to prosecute his claims. Indeed, it appears no action has taken in 11 this matter other than his appearance at the third scheduling conference set by the Court. Accordingly, 12 these factors weigh in favor of dismissal of the action. 13 B. Prejudice to Defendant 14 To determine whether Praxair has been prejudiced, the Court must “examine whether the 15 plaintiff’s actions impair the … ability to go to trial or threaten to interfere with the rightful decision of 16 the case.” Malone, 833 F.2d at 131 (citing Rubin v. Belo Broadcasting Corp., 769 F.2d 611, 618 (9th 17 Cir. 1985)) In this case, Berry failed to comply with the Court’s orders to appear at two scheduling 18 conference, to meet and confer with Praxair, and to engage in discovery. These failures significantly 19 impairs Praxair’s ability to prepare for a trial. Moreover, a presumption of prejudiced arises when a 20 plaintiff unreasonably delays the prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524 21 (9th Cir. 1976). Accordingly, this factor weighs in favor of dismissal. 22 C. Consideration of less drastic sanctions 23 The Court “abuses its discretion if it imposes a sanction of dismissal without first considering 24 the impact of the sanction and the adequacy of less drastic sanctions.” United States v. Nat’l Medical 25 Enterprises, Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, the Ninth Circuit has determined that a 26 court’s warning to a party that his failure to obey the court’s order will result in dismissal can satisfy 27 the “consideration of alternatives” requirement. See Malone, 833 F.2d at 133; Ferdik, 963 F.2d at 28 1262. As the Ninth Circuit explained, “a plaintiff can hardly be surprised” by a sanction of dismissal 1 “in response to willful violation of a pretrial order.” Malone, 833 F.2d at 133. 2 The Court warned Berry repeatedly that his failure to comply with orders may result in the 3 imposition of terminating sanctions. For example, in the “Order Setting Mandatory Scheduling 4 Conference” dated December 8, 2020, the Court informed the parties that dismissal, may result 5 “[s]hould counsel or a party appearing pro se fail to appear at the mandatory scheduling conference, or 6 fail to appear at the mandatory scheduling conference.” (Doc. 8 at 6, emphasis omitted.) When Berry 7 failed to appear for the scheduling conference—forcing a continuation—the Court again warned, 8 “Failure to comply with this order may be grounds for the imposition of sanctions on… any party or 9 parties who cause non-compliance with this order.” (Doc. 13, emphasis omitted.) Despite these 10 orders, Berry twice failed to appear for conferences with the Court. Furthermore, the Court informed 11 Berry that his failure to comply with the scheduling order may result in the imposition of sanctions, 12 “including… dismissal.” (Doc. 19 at 7, emphasis omitted.) 13 Significantly, these repeated warnings satisfy the requirement that the Court consider lesser 14 sanctions. See Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424; Titus, 695 F.2d at 749 n.6. 15 Indeed, the Court need only warn a party once that the matter would be dismissed for failure to 16 comply to satisfy the requirement. Id.; see also Titus v. Mercedes Benz of North America, 695 F.2d 17 746, 749 n.6 (3d Cir. 1982) (identifying a “warning” as an alternative sanction). Accordingly, this 18 factor weighs in favour of dismissal of the action. 19 D. Public policy 20 Given Berry’s failure to prosecute the action— and his corresponding failure to comply with the 21 Court’s orders — the policy favoring disposition of cases on their merits is outweighed by the factors in 22 favor of dismissal. See Malone, 833 F.2d at 133, n.2 (explaining that although “the public policy 23 favoring disposition of cases on their merits … weighs against dismissal, it is not sufficient to outweigh 24 the other four factors”). 25 IV. Conclusion and Order 26 Plaintiff failed to prosecute this action and failed to comply with the Court’s orders dated 27 December 8, 2020 (Doc. 8); February 25, 2021 (Doc. 13); March 31, 2021 (Doc. 19); and October 28, 28 1 {| 2021 (Doc. 22). As set forth above, the factors set forth by the Ninth Circuit weigh in favor of 2 || dismissal of the matter. Accordingly, the Court ORDERS: 3 1. Defendant’s motion to dismiss (Doc. 30) is GRANTED. 4 2. This action is DISMISSED with prejudice; and 5 3. The Clerk of Court is directed to close this action. 6 7 || IT IS SO ORDERED. 8 Dated: _ March 21, 2022 Charis [Tourn 9 TED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28