1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SUZANNE NAVONE, No. 2:20-cv-01351-JAM-JDP 12 Plaintiff, ORDER DISMISSING PLAINTIFF’S

ACTION WITH PREJUDICE FOR

13 v. FAILURE TO PROSECUTE PURSUANT TO FED. R. CIV. P. 41(b) 14 ACTION WATERSPORTS OF TAHOE, et al., 15 Defendants. 16

17 18 This action commenced on July 6, 2020. Plaintiff’s Complaint 19 named four defendants. ECF No. 1. Following the filing of the 20 Complaint, other than a substitution of the assigned Magistrate 21 Judge, no activity occurred during the subsequent three years. 22 See Dkt. Following a review of the docket, the Court ordered 23 Plaintiff to show cause (“OSC”) on August 21, 2023, as to why 24 this action should not be dismissed for failure to prosecute. 25 OSC, ECF No. 6. Plaintiff filed a response to the OSC. Plf.’s 26 OSC Response, ECF No. 7. 27 To date, the Court has not discharged its OSC. See Dkt. 28 While the Court’s Order on Defendant AMT’s motion to dismiss “MTD 1 Order,” ECF No. 25, and the OSC both relate to the prolonged 2 period of inactivity in this action, they concern different legal 3 issues. Accordingly, this Order is issued independent from the 4 Court’s MTD Order. 5 I. OPINION 6 “District courts have inherent power to control their 7 dockets and may impose sanctions, including dismissal, in the 8 exercise of that discretion.” Oliva v. Sullivan, 958 F.2d 272, 9 273 (9th Cir. 1992). The Court may sua sponte dismiss an action 10 for a failure to prosecute under Rule 41(b) of the Federal Rules 11 of Civil Procedure. Fed. R. Civ. P. 41(b); Hells Canyon 12 Preservation Council v. United States Forest Service, 403 F.3d 13 683, 689 (9th Cir. 2005). Courts must weigh the following when 14 considering whether to dismiss an action for failure to 15 prosecute: (1) the public's interest in expeditiously resolving 16 litigation; (2) the Court's need to manage its docket; (3) the 17 risk of prejudice to the defendants; (4) the availability of 18 less drastic alternatives; and (5) the public policy favoring 19 resolution on the merits. E.g., Hernandez v. City of El Monte, 20 138 F.3d 393, 399 (9th Cir. 1998). 21 A. The Public’s Interest in Expeditious Resolution 22 “[T]he public’s interest in expeditious resolution of 23 litigation always favors dismissal.” Yourish v. California 24 Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). 25 B. The Court’s Need to Manages Its Docket 26 Given that there was no activity in this case for over 27 three years, the Court’s ability to efficiently and 28 expeditiously manage its docket was impaired. Thus, this factor 1 also weighs in favor of dismissal. 2 C. Risk of Prejudice to Defendant 3 An unreasonable delay presumptively prejudices Defendants. 4 Hernandez, 138 F.3d at 400-01; Anderson v. Air W., Inc., 542 5 F.2d 522 (9th Cir. 1976); In re Eisen, 31 F.3d 1447, 1452 (9th 6 Cir. 1994). Since the OSC, Plaintiff has served only Defendant 7 Camp Richardson Resort, Inc. (“CRR”), ECF Nos. 8, 9, and then 8 agreed to dismiss this Defendant shortly thereafter. See ECF 9 No. 13. Although Plaintiff claims she served Defendant Action 10 Motorsports of Tahoe, Inc. (“AMT”) (erroneously sued as Action 11 Watersports of Tahoe), she instead served an unrelated entity 12 named “Action Watersports of Incline Village, LLC.” Return of 13 Service, ECF No. 17 at 2. 14 The Court finds Plaintiff’s justification for the delay in 15 serving her Complaint on all four Defendants is unreasonable. As 16 noted above, Defendant AMT has never been properly served and 17 Defendant CRR was served, but then dismissed. As to the 18 remaining two Defendants, Mark Taylor and James Graham, 19 Plaintiff states she was unable to locate them but intends to 20 hire an investigator for assistance. Plf.’s OSC Response at 6. 21 More than four months have passed since the Court issued its 22 OSC, and those Defendants have still not been served. See Dkt. 23 Plaintiff also has never explained why she failed or was unable 24 to hire an investigator in the three years preceding the OSC. 25 Plaintiff also attributes the delay in service to the 26 departure of the attorney handling Plaintiff’s case and a lapse 27 in attorney-client communications. Plf.’s OSC Response at 2. 28 While some delay can be expected from this departure, a delay of 1 three years due to the unavailability of counsel is not 2 reasonable. 3 Finally, there is no evidence any Defendants attempted to 4 evade service or contributed to Plaintiff’s delay by wrongful 5 conduct. Although Defendants CRR and AMT did not respond to 6 Plaintiff’s correspondences, Plf.’s OSC Response at 3, assuming 7 they indeed received those correspondences, they were under no 8 legal obligation to respond. 9 Because the Court finds Plaintiff’s explanations for the 10 delay unreasonable, Defendants are presumptively prejudiced. 11 Defendants may also be prejudiced because the significant 12 passage of time affects the availability and reliability of 13 witnesses. Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 14 2007). The three-and-a-half-year delay may also create 15 difficulty with conducting discovery, which is exacerbated 16 considering the incident that gave rise to the complaint 17 occurred almost seven years ago. See ECF No. 25. 18 D. Availability of Less Drastic Alternatives 19 Providing Plaintiff additional time to serve all Defendants 20 would be a less drastic alternative to dismissal, but doing so 21 would be futile. Despite the Court’s OSC—issued over 120 days 22 ago—Plaintiff has taken little if any steps toward actively 23 prosecuting her lawsuit. For this reason, the Court finds 24 dismissal without prejudice is not a feasible alternative. 25 Plaintiff states in her OSC response that she will dismiss 26 this action if she is unable to serve the remaining Defendants 27 within 90 days. Plf.’s OSC Response at 6. That period has come 28 and gone, and all Defendants have still not been served. See nee enn meee ne nn nn nnn nnn on nnn nn enn nN OE ED EE

1} Dkt. 2 E. Public Policy Favoring Resolution on the Merits 3 “Public policy favors disposition of cases on the merits. 4 Thus, this factor weighs against dismissal.” Pagtalunan v. 5 Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, “it is the 6 responsibility of the moving party to move towards that 7 disposition at a reasonable pace ... .” Morris v. Morgan 8 Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991) (affirming 9 dismissal for failure to prosecute). That responsibility has not 10 | been met in this action. 11 Il. ORDER 12 For all the foregoing reasons, this action is DISMISSED WITH 13 PREJUDICE for failure to prosecute. 14 IT IS SO ORDERED. 15 Dated: January 22, 2024 16 ep

JOHN A. MENDEZ

18 SENIOR UNITED*STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28