1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 RODERICK HIMES, Case No.: 20cv726-JAH

11 Plaintiff,

ORDER ADOPTING THE

12 v. MAGISTRATE JUDGE’S REPORT

AND RECOMMENDATION (ECF

13 A. TAYLOR GARCIA,

NO. 23) TO DISMISS THE FIRST

14 Defendant. AMENDED COMPLAINT

WITHOUT PREJUDICE (ECF NO. 8)

15 16

17 INTRODUCTION 18 Pending before the Court is a Report and Recommendation (“Report”) submitted to 19 this Court by the Honorable Bernard G. Skomal, United States Magistrate Judge, 20 recommending dismissal of Plaintiff Roderick Himes’ (“Plaintiff”) First Amended 21 Complaint without prejudice. No timely objections or replies were filed in response to the 22 Report. After careful consideration of the Report, pleadings, and relevant materials, and 23 for the reasons set forth below, this Court ADOPTS Judge Skomal’s Report and 24 DISMISSES the First Amended Complaint without prejudice. 25 26 27 28 1 BACKGROUND 2 On April 15, 2020, Plaintiff filed a Complaint against A. Taylor Garcia (“Garcia”) 3 and Marcus Pollard (“Pollard”) along with a Motion for Leave to Proceed in forma 4 pauperis. (ECF Nos. 1-2). The Court granted Plaintiff’s Motion to Proceed in forma 5 pauperis and dismissed the Complaint for failing to state a claim pursuant to 28 U.S.C. § 6 1915(e)(2) and 28 U.S.C. § 1915A(b). (ECF. No. 7). Plaintiff then filed the First Amended 7 Complaint on June 22, 2020 (ECF. No. 8), which was dismissed as to Pollard, but not 8 Garcia. (ECF. No. 10). Defendant Garcia filed an Answer to the First Amended Complaint 9 on December 31, 2020. (ECF. No. 13). 10 Subsequently, as set forth in the Report, Plaintiff has failed to comply with multiple 11 Court orders, including an Order Show to Cause why he should not be sanctioned and a 12 second Order to Show Cause why his case should not be dismissed. (ECF Nos. 15, 19, 21, 13 and 22). After the Plaintiff’s failure to comply with or respond to the second Order to 14 Show Cause, Judge Skomal recommended that this Court dismiss the case without 15 prejudice. (ECF No. 23). Plaintiff has not filed any objections to the Report. 16 DISCUSSION 17 I. Legal Standard 18 The district court’s role in reviewing a magistrate judge’s report and 19 recommendation is set forth in 28 U.S.C. section 636(b)(1). Under this statute, the district 20 court “shall make a de novo determination of those portions of the report . . . to which no 21 objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by the magistrate [judge].” Id. When no objections are filed, the 23 Court may assume the correctness of the magistrate judge’s findings of fact and the district 24 court is not required to conduct a de novo review of the magistrate judge’s report and 25 recommendation. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005) (stating 26 27 1 The underlying background set forth in the report are adopted in toto, and referenced as 28 1 that “de novo review of a R & R is only required when an objection is made”); United 2 States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that 28 3 U.S.C. section 636(b)(1)(c) “makes it clear that the district judge must review the 4 magistrate judge’s findings and recommendations de novo if objection is made, but not 5 otherwise”). 6 A “district court may dismiss an action for failure to comply with any order of the 7 court.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992); Fed. R. Civ. P. 41(b) 8 (stating that a case may be involuntarily dismissed if a plaintiff “fails . . . to comply with 9 these rules or a court order”); see also Hells Canyon Pres. Council v. U.S. Forest Serv., 10 403 F.3d 683, 689 (9th Cir. 2005) ([a]cknowledging language of Rule 41(b) suggests 11 dismissal following defendant’s motion, but agreeing with sister circuits that “courts may 12 dismiss under Rule 41(b) sua sponte.”). Indeed, “[d]istrict courts have the inherent power 13 to control their dockets and, ‘[i]n the exercise of that power they may impose sanctions 14 including, where appropriate . . . dismissal of a case.’” Ferdik, 963 F.2d at 1260 (citing 15 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986), cert. denied, 479 U.S. 829, 16 107 S.Ct. 112, 93 L.Ed.2d 60 (1986)). However, “dismissal is a harsh penalty” and “should 17 only be imposed in extreme circumstances.” Id. (citing Hamilton Copper & Steel Corp. v. 18 Primary Steel, Inc., 898 F.2d 1428, 1429 (9th Cir.1990)); Henderson v. Duncan, 779 F.2d 19 1421, 1423 (9th Cir.1986). 20 “In determining whether to dismiss a case for failure to comply with a court order 21 the district court must weigh five factors including: ‘(1) the public’s interest in expeditious 22 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice 23 to the defendants; (4) the public policy favoring disposition of cases on their merits; and 24 (5) the availability of less drastic alternatives.’” Ferdik, 963 F.2d at 1260-61 (citing 25 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423). This analysis is “not 26 mechanical” and “provides the district court with a way to think about what to do, not a set 27 of conditions precedent.” Connecticut Gen. Life Ins. Co. v. New Images Beverly Hills, 482 28 F.3d 1091, 1096 (9th Cir. 2007). 1 II. Analysis 2 In reviewing these five factors, the Court agrees with Judge Skomal’s determination 3 that dismissal without prejudice is appropriate. The public’s interest in the expeditious 4 resolution of litigation, the court’s need to manage its docket, the risk of prejudice to the 5 defendant, and the availability of less drastic alternatives favor dismissal. While the public 6 policy favoring disposition of cases on their merits may weigh against dismissal, it does 7 not offset the remaining factors. 8 A. The Public’s Interest in Expeditious Resolution and the Court’s Need to Manage Its Docket 9 The public’s interest in expeditious resolution and the Court’s need to manage its 10 docket both favor dismissal. These two factors are “usually reviewed in conjunction”. In 11 re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1227 (9th Cir. 2006). 12 As to the former, the Ninth Circuit has previously held that “the public’s interest in 13 expeditious resolution of litigation always favors dismissal.” Yourish v. California 14 Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). As to the latter, the Court agrees with Judge 15 Skomal’s determination that the Court’s need to manage its docket favors dismissal. It “is 16 incumbent upon the Court to manage its docket without being subject to routine 17 noncompliance of litigants.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 18 Where a plaintiff’s “conduct greatly impede[s] resolution of the case”, this factor favors 19 dismissal. Malone v. U.S. Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987); see also Ash v. 20 Cvetkov, 739 F.2d 493. 496 (9th Cir. 1984) (finding no abuse of discretion in dismissing 21 for failure to prosecute following four-week delay). 22 23 Here, as discussed in the Report, Plaintiff’s noncompliance with the Court’s orders 24 has delayed the case by more than five months. (ECF No. 23 at 5). For instance, over the 25 course of three orders, Plaintiff: 26 failed to participate in the Rule 26(f) conference by the March 29, 2021 deadline; (2) failed to submit his ENE Statement by the April 12, 2021 27 deadline; (3) failed to submit his ENE Statement by the April 29, 2021 28 deadline; (4) failed to submit his ENE Statement by the June 16, 2021 1 deadline; and (5) failed to respond to the Court’s Order to Show Cause by the June 16, 2021 deadline. (ECF No. 22 at 3). 2 3 Plaintiff has also failed to respond to the Court’s Second Order to Show Cause by the 4 August 16, 2021 deadline. (ECF No. 23 at 4). Moreover, Plaintiff has not provided any 5 explanation for his failure to respond to the various court orders or deadlines.2 In light of 6 Plaintiff’s noncompliance, which resulted in a five-month delay, the Court finds that the 7 public’s interest in the expeditious resolution of litigation and the Court’s need to manage 8 its docket both favor dismissal. 9 B. Risk of Prejudice to Respondent 10 Because Plaintiff’s unexplained noncompliance has delayed the proceedings by five 11 months, the risk of prejudice to respondent factor favors dismissal. While “[l]imited delays 12 and the prejudice to a defendant from the pendency of a lawsuit are realities of the system 13 that have to be accepted,” Pagtalunan, 291 F.3d at 642 (citations omitted), “[w]hen a 14 plaintiff has unreasonably delayed litigation, we presume prejudice.” Epicenter Loss 15 Recovery LLC v. Burford Cap. Ltd., 855 F. App'x 388, 389 (9th Cir. 2021) (citing In re 16 Eisen, 31 F.3d 1447, 1452–53 (9th Cir. 1994)). “This presumption can be rebutted if the 17 plaintiff produces evidence showing the reason for the delay was not frivolous”, id., but if 18 a plaintiff “has failed to provide any excuse for his failure to obey the order”, this factor 19 favors dismissal. De Nardo v. Municipality of Anchorage, 974 F.2d 1341 (9th Cir. 1992). 20 Here, as discussed above, Plaintiff’s failure to respond to numerous court orders has 21 delayed the proceedings by five months, and Plaintiff has provided no explanation for his 22 failure to obey the order. As a result, this factor favors dismissal. See, e.g., Pagtalunan, 23 291 F.3d at 643 (concluding that the risk of prejudice factor favors dismissal in part because 24 25

26 2 As noted in the Report, Plaintiff and counsel did call Judge Skomal’s chambers on April 26, 2021 for 27 the ENE/CMC set for that date. (ECF No. 23 at 2; ECF No. 19). However, because Plaintiff failed to submit his ENE Statement, and because no Joint Discovery Plan was filed, neither the ENE nor the 28 1 Plaintiff “offered no clear explanations of what actions he actually took during the relevant 2 time periods”). 3 C. Availability of Less Drastic Alternatives to Dismissal 4 Because Judge Skomal expressly warned Plaintiff of the possibility of dismissal, and 5 because less drastic alternatives were considered and implemented, this factor weighs in 6 favor of dismissal. In determining whether a district court has considered alternatives to 7 dismissal, the Ninth Circuit considers the following: “(1) [d]id the court explicitly discuss 8 the feasibility of less drastic sanctions and explain why alternative sanctions would be 9 inadequate? (2) [d]id the court implement alternative methods of sanctioning or curing the 10 malfeasance before ordering dismissal? (3) [d]id the court warn the plaintiff of the 11 possibility of dismissal before actually ordering dismissal?” Malone v. U.S. Postal Serv., 12 833 F.2d 128, 132 (9th Cir. 1987).” “When reviewing a sua sponte order of dismissal . . . 13 special consideration” is afforded “to the lack of warning and failure to consider less drastic 14 alternatives.” Epicenter Loss Recovery LLC v. Burford Cap. Ltd., 855 F. App'x 388, 390 15 (9th Cir. 2021) (citing Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). 16 First, as required by the first subfactor, Judge Skomal discussed the feasibility of 17 less drastic sanctions by considering monetary sanctions and explained that because 18 “Plaintiff is proceeding IFP and is unlikely to be in a position to pay a monetary sanction 19 and also appeared to have abandon[ed] this case, the Court instead provided Plaintiff a final 20 opportunity to comply”. (ECF No. 23 at 8 (citing ECF No. 22)). 21 Second, Judge Skomal’s multiple extensions and orders to show cause in lieu of 22 dismissal provided an “alternative method . . . of curing the malfeasance before ordering 23 dismissal.” Malone, 833 F.2d at 132. 24 25 Third, and most importantly, Plaintiff was expressly warned that he may face 26 dismissal if he fails to respond to the second Order to Show Cause. In the Ninth Circuit, 27 “[w]arning a plaintiff that failure to obey a court order will result in dismissal meets the 28 ‘consideration of alternatives’ requirement.” De Nardo v. Municipality of Anchorage, 974 1 F.2d 1341 (9th Cir. 1992) (affirming the District Court’s dismissal because “the district 2 court clearly warned De Nardo that if he did not comply with the order, the court would 3 dismiss the case); see also Conley v. Van Sickle, 24 F.3d 245 (9th Cir. 1994) (holding that 4 “as to [availability of less drastic alternatives],” because “the district court explicitly 5 warned Conley that he risked dismissal . . . the court's obligation to consider less drastic 6 alternatives to dismissal” was “satisfied”); Kalka v. Henry, 119 F.3d 6 (9th Cir. 1997) 7 (holding that because Plaintiff “was warned that his failure to file an amended complaint 8 would lead to dismissal of his complaint . . . the district court did not abuse its discretion 9 by dismissing Kalka's action for failure to comply with a court order”) (citing cases). Here, 10 in the Second Order to Show Cause, Plaintiff was expressly warned that if he “fails to 11 comply with [the Second Order to Show Cause], the undersigned will recommend this case 12 be dismissed”. (ECF No. 22 at 4). Given Judge Skomal’s prior extensions and express 13 warning, the Court finds that the availability of less drastic alternatives factor favors 14 dismissal. 15 D. Public Policy Favoring Disposition of Cases on their Merits 16 While the “public policy favoring disposition of cases on their merits strongly 17 counsels against dismissal,” Epicenter Loss Recovery LLC v. Burford Cap. Ltd., 855 F. 18 App'x 388, 390 (9th Cir. 2021), “this factor ‘lends little support’ to a party ... whose conduct 19 impedes progress in that direction.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 20 460 F.3d 1217, 1228 (9th Cir. 2006). Indeed, where a plaintiff “unreasonably delays a 21 case”, “this factor can flip”. Epicenter, 855 F. App'x 388, 390 (9th Cir. 2021) (citing In re 22 PPA, 460 F.3d at 1228). Even if the five-month delay caused by the Plaintiff does not meet 23 this standard, this factor alone is not enough to outweigh the other four factors. See, e.g., 24 Malone, 963 F.2d at 133 n. 2 (four factors heavily supporting dismissal outweigh one 25 against dismissal). 26 /// 27 /// 28

I CONCLUSION AND ORDER

2 Taking the five factors into consideration, the Court agrees with Judge Skomal’s 3 || determination that dismissal without prejudice is appropriate. Based on the foregoing, IT 4 || IS HEREBY ORDERED: 5 l. The Magistrate Judge’s report and recommendation is ADOPTED. 6 2. The petition/case is DISMISSED without prejudice. 7 8 IIDATED: January 31, 2022 : IV 10 11 // United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28