1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SCOTT JOHNSON, Case No. 20-cv-07258-JSC

8 Plaintiff,

ORDER DISMISSING CASE WITH

9 v. PREJUDICE FOR FAILURE TO

PROSECUTE

10 ACV FSD FREMONT, LP, et al.,

Defendants. 11

12 13 Plaintiff filed this Americans with Disabilities Act access case on October 16, 2020 and 14 Defendants answered on November 20, 2020. Under General Order 56, which governs this case, 15 no later than 60 days after service of the complaint the parties were required to conduct a joint site 16 inspection. GO 56 ¶ 7. No more than 35 days following the joint site inspection, the parties were 17 required to hold a settlement meeting. Id. ¶ 8. If the case did not resolve, then within 42 days of 18 the joint site inspection or settlement meeting—whichever occurs first—the parties were required 19 to file either a Notice of Settlement or a Notice of Need for Mediation and Certification of 20 Counsel. Id. ¶ 9. As of June 29, 2021, however, the case docket did not reflect any activity since 21 December 9, 2020. 22 In light of the apparent failure to comply with the scheduling order, on June 29, 2021, the 23 Court ordered Plaintiff to file a status update on or before July 13, 2021. (Dkt. No. 14.) As of 24 July 22, 2021, Plaintiff had not filed the ordered status update nor otherwise communicated with 25 the Court. Accordingly, on that date the Court ordered Plaintiff to show cause why this action 26 should not be dismissed pursuant to Federal Rule of Civil Procedure 41 for failure to prosecute the 27 action and follow court orders. The Order directed Plaintiff to file a response on or before July 29, 1 dismissal of the action for a failure to prosecute. (Dkt. No. 15.) As of the date of this Order, 2 Plaintiff has still failed to respond. 3 Pursuant to Federal Rule of Civil Procedure 41(b), the Court may dismiss an action for 4 failure to prosecute or to comply with a court order. See Hells Canyon Preservation Council v. 5 U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that a court may sua sponte 6 dismiss an action pursuant to Rule 41(b)). “A Rule 41(b) dismissal must be supported by a 7 showing of unreasonable delay.” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) 8 (internal citation and quotation marks omitted). In determining whether a Rule 41(b) dismissal is 9 appropriate, the court must weigh the following factors: “(1) the public’s interest in expeditious 10 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 11 defendants; (4) the public policy favoring disposition of cases on their merits and (5) the 12 availability of less drastic sanctions.” Id. (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 13 (9th Cir.1986)). Dismissal is appropriate “where at least four factors support dismissal . . . or 14 where at least three factors strongly support dismissal.” Hernandez v. City of El Monte, 138 F.3d 15 393, 399 (9th Cir. 1998) (internal citation and quotation marks omitted). 16 Here, four of the five Henderson factors weigh in favor of dismissal. “The first two 17 factors—the public interest in expeditious resolution of litigation and the Court’s need to manage 18 its docket—relate to the “efficient administration of judicial business for the benefit of all litigants 19 with cases pending.” Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1279 20 (9th Cir. 1980). By failing to comply with the Court’s scheduling order, failing to respond to the 21 order for a status update, and failing to respond to the order to show cause, Plaintiff has delayed 22 adjudication of this action. Non-compliance with procedural rules and the Court’s orders wastes 23 “valuable time that [the Court] could have devoted to other ... criminal and civil cases on its 24 docket.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). 25 As for the third factor, while “the pendency of the lawsuit is not sufficiently prejudicial 26 itself to warrant dismissal,” the delay caused by Plaintiff’s failure to prosecute this action despite 27 the Court’s order weighs in favor of dismissal. Yourish v. California Amplifier, 191 F.3d 983, 991 1 The fourth factor is the availability of less drastic sanctions. The Court already cautioned 2 || Plaintiff that failure to respond would result in dismissal of this action. (Dkt. No. 8.) Thus, the 3 Court has fulfilled its “obligation to warn the plaintiff that dismissal is imminent.” Oliva v. 4 Sullivan, 958 F.2d 272, 274 (9th Cir. 1992); see also Ferdick, 963 F.2d at 1262 (“A district court’s 5 || warning to a party that failure to obey the court’s order will result in dismissal can satisfy the 6 ‘consideration of [less drastic sanctions] requirement.”). The fourth factor thus weighs in favor of 7 dismissal. 8 The last factor, which favors disposition on the merits, by definition weighs against 9 || dismissal. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (“Public policy favors 10 || disposition of cases on the merits. Thus, this factor weighs against dismissal.”’). 11 In sum, four of the five relevant factors weigh strongly in favor of dismissing this action in 12 || its entirety. See Pagtalunan, 291 F.3d at 643 (affirming dismissal where three factors favored 13 dismissal, while two factors weighed against dismissal). The Court therefore DISMISSES this 14 action with prejudice pursuant to Federal Rule of Civil Procedure 411. 3 15 IT IS SO ORDERED. a 16 Dated: August 5, 2021 le a Sul □ ne

ACQUELINE SCOTT CORLE

19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28 ' All parties have consented to the jurisdiction of a magistrate judge. (Dkt. Nos. 9, 13.)