1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GERONIMO PIEDRA GOMEZ, et al., Case No. 23-cv-00439-JSC

8 Plaintiffs,

ORDER DISMISSING PLAINTIFF

9 v. GOMEZ’S CLAIMS FOR LACK OF

PROSECUTION

10 EXTREME EXTERIORS, INC., et al.,

Defendants. 11

12 13 Plaintiff Geronimo Gomez filed this action seeking redress for Defendants’ alleged 14 violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (Dkt. No. 1.)1 By Order filed 15 September 18, 2023, the Court granted attorney James Dore’s motion to withdraw as counsel for 16 Plaintiff Geronimo Gomez based on Mr. Dore’s representation he had lost contact with Plaintiff 17 Gomez despite repeated attempts to reach him by mail, telephone and email. (Dkt. No. 28.) By 18 Order filed October 24, 2023, the Court instructed Plaintiff Geronimo Gomez to show cause by 19 November 7, 2023, why his case should not be dismissed for lack of prosecution. (Dkt. No. 32.) 20 The Court warned Plaintiff Gomez failure to file such a writing with the Court by November 7, 21 2023, would result in a dismissal of his claims with prejudice. (Id.) Plaintiff Gomez failed to 22 submit a writing to the Court stating his intent to prosecute his claims and has not otherwise 23 communicated with the Court. 24 Pursuant to Federal Rule of Civil Procedure 41(b), the Court may dismiss an action for 25 failure to prosecute or to comply with a court order. See Hells Canyon Preservation Council v. 26 U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing a court may sua sponte dismiss 27 1 claims pursuant to Rule 41(b)). “A Rule 41(b) dismissal must be supported by a showing of 2 unreasonable delay.” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (cleaned up) 3 overruled on other grounds by Langere v. Verizon Wireless Servs., LLC, 983 F.3d 1115, 1117 (9th 4 Cir. 2020). The Court weighs the following factors in determining whether a Rule 41(b) dismissal 5 is appropriate: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 6 to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 7 disposition of cases on their merits and (5) the availability of less drastic sanctions.” Henderson v. 8 Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). Dismissal is appropriate “where at least four 9 factors support dismissal. . .or where at least three factors strongly support dismissal.” Hernandez 10 v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (cleaned up). 11 Here, four of the five Henderson factors weigh in favor of dismissal. “The first two 12 factors—the public interest in expeditious resolution of litigation and the Court’s need to manage 13 its docket—relate to the efficient administration of judicial business for the benefit of all litigants 14 with cases pending.” Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1279 15 (9th Cir. 1980). Plaintiff Gomez’s failure to respond to the Court’s orders has delayed 16 adjudication of this action. Noncompliance with the Court’s orders wastes valuable time the Court 17 otherwise could have devoted to other matters. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 18 1992). 19 As to the third factor, “the pendency of the lawsuit is not sufficiently prejudicial itself to 20 warrant dismissal.” Yourish v. California Amplifier, 191 F.3d 983, 991 (9th Cir. 1999). However, 21 the risk of prejudice to defendants strongly supports dismissal where plaintiffs offer no excuse or 22 “a very poor reason” for noncompliance. Id. at 991-92. Here, Plaintiff Gomez has entirely failed 23 to justify his noncompliance or respond to the Court’s order to show cause. The unjustified delay 24 caused by Plaintiff Gomez’s failure to prosecute his claims despite the Court’s orders weighs in 25 favor of dismissal. 26 The fourth factor is the availability of less drastic sanctions. The Court already cautioned 27 Plaintiff Gomez failure to respond would result in dismissal of his claims. (Dkt. No. 32.) Thus, 1 || Sullivan, 958 F.2d 272, 274 (9th Cir. 1992); see also Ferdik, 963 F.2d at 1262 (“A district court’s 2 || warning to a party that failure to obey the court’s order will result in dismissal can satisfy the 3 ‘consideration of [less drastic sanctions] requirement.”). Further, given his absence, no other 4 || sanctions are available. The fourth factor thus weighs in favor of dismissal. 5 The last factor, which favors disposition on the merits, by definition weighs against 6 || dismissal. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (“Public policy favors 7 || disposition of cases on the merits. Thus, this factor weighs against dismissal.”). 8 In sum, four of the five relevant factors weigh strongly in favor of dismissing Plaintiff 9 || Gomez’s claims. See Pagtalunan, 291 F.3d at 643 (affirming dismissal where three factors 10 || favored dismissal, while two factors weighed against dismissal). Accordingly, the Court 11 DISMISSES Plaintiff Gomez’s claims for failure to prosecute and comply with the Court’s 12 || October 24 Order. 13 IT IS SO ORDERED. 14 Dated: December 4, 2023

6 ets SeMlols

JACQUELINE SCOTT CORLEY

17 nited*States District Judge 18 19 20 21 22 23 24 25 26 27 28