1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SANCHEZ INCORPORATED, Case No. 21-cv-0045-BAS-BGS

12 Plaintiff,

ORDER DISMISSING ACTION

13 v. WITHOUT PREJUDICE

14 CITY OF CLAIREMONT, 15 Defendant. 16 17 On January 11, 2021, Plaintiff Sanchez Incorporated filed the present action without 18 appointing counsel and moved for a leave to proceed in forma pauperis. (ECF No. 1.) The 19 Court ordered Plaintiff to obtain counsel on or before February 5, 2021, and warned that if 20 Plaintiff does not obtain counsel by that date, the Court will dismiss this action. (Order, 21 ECF No. 3.) Close to a month has passed after the deadline, and Plaintiff has not obtained 22 counsel. 23 Rule 41(b) of the Federal Rules of Civil Procedure allows a court to dismiss an action 24 for want of prosecution upon a party’s motion. Independent of Rule 41(b), the district 25 courts hold an inherent power to dismiss an action sua sponte for lack of prosecution. Link 26 v. Wabash R.R., 370 U.S. 626, 630–32 (1962) (holding that the district courts’ inherent 27 power “to manage their own affairs so as to achieve the orderly and expeditious disposition 28 of cases” exists independent of Rule 41(b)); see Ferdik v. Bonzelet, 963 F.2d 1258, 1260 1 (9th Cir. 1992). “Despite this authority, dismissal is a harsh penalty and, therefore, it 2 should only be imposed in extreme circumstances.” Ferdik, 963 F.2d at 1260. 3 The circumstances in which a court may exercise its inherent power to dismiss an 4 action include where, as here, a plaintiff has failed to prosecute the case or failed to comply 5 with a court order. Link, 370 U.S. at 630 (failure to prosecute); Yourish v. Cal. Amplifier, 6 191 F.3d 983, 989–90 (9th Cir. 1999) (failure to comply with a court order). In determining 7 whether to exercise this power, “the district court must weigh five factors including (1) the 8 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 9 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition 10 of cases on their merits; and (5) the availability of less drastic alternatives.” Ferdik, 963 11 F.2d at 1260–61 (quoting Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986); 12 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986)) 13 (internal quotation marks omitted). “The first two of these factors favor the imposition of 14 sanctions in most cases, while the fourth factor cuts against a default or dismissal sanction.” 15 Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990). “Thus the key factors are 16 prejudice and availability of lesser sanctions.” Id. Although it is preferred, the district 17 court is not required to “make explicit findings in order to show that it has considered these 18 factors.” Ferdik, 963 F.3d at 1261. 19 Under the circumstances of this case, and as recognized by the Ninth Circuit, the 20 public’s interest in expeditious resolution of litigation and the court’s need to manage its 21 docket weigh in favor of dismissal while the public policy favoring disposition of cases on 22 their merits weighs against dismissal. See Wanderer, 910 F.2d at 656. Risk of prejudice 23 to Defendants also weighs in favor of dismissal because a presumption of injury arises 24 from the occurrence of unreasonable delay in prosecuting an action. See Anderson v. Air 25 West, 542 F.2d 522, 524 (9th Cir. 1976). Finally, a court’s warning to a party that the 26 failure to obey the court’s order will result in dismissal satisfies the “consideration of 27 alternatives” requirement. Ferdik, 963 F.2d at 1262. Here, the Court warned Plaintiff that 28 its failure to obtain counsel by February 5, 2021, will result in a dismissal of this action 1 || with prejudice. (Order, ECF No. 3.) Consequently, Plaintiff had adequate warning that 2 || failure to obtain counsel may result in dismissal of this action, and the factor weighs in 3 || favor of dismissal. 4 In light of the foregoing, the Court exercises its inherent power to dismiss this action 5 || for Plaintiffs’ failure to prosecute and for failure to follow a court order. Therefore, the 6 || Court DISMISSES WITHOUT PREJUDICE this action in its entirety. 7 IT IS SO ORDERED. 8 A , 9 || DATED: March 2, 2021 Lin A (Lyohaa 6 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28