Collier v. City of Union City

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 DARREN J COLLIER, et al., Case No. 21-cv-00462-JSC 8 Plaintiffs, ORDER DISMISSING CASE FOR 9 v. FAILURE TO PROSECUTE 10 CITY OF UNION CITY, Re: Dkt. No. 28 Defendant. — 11 — — 12 — 13 On January 19, 2021, Plaintiffs filed this section 1983 action against the City of Union 14 City following an encounter with Union City Police Officers. (Dkt. No. 1.) On July 22, 2021, the 15 Court referred the action to Magistrate Judge Westmore for a settlement conference. (Dkt. No. 20.) 16 Since the referral, Plaintiffs’ counsel has repeatedly failed to appear at telephonic scheduling 17 conferences and has failed to communicate with Judge Westmore. (Dkt. Nos. 23, 25, 26, 27.) As a 18 result, on December 8, 2021, the Court vacated the settlement conference referral order and 19 ordered Plaintiffs to show cause as why this action should not be dismissed for failure to prosecute 20 and follow court orders. (Dkt. No. 28.) The Order directed Plaintiffs to file a response on or 21 before December 16, 2021 and warned Plaintiffs that a failure to file a response or to show good 22 cause would result in dismissal of the action for failure to prosecute. As of the date of this Order, 23 Plaintiffs have still failed to respond. 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 that a court may sua sponte 27 dismiss an action pursuant to Rule 41(b)). “A Rule 41(b) dismissal must be supported by a 1 (internal citation and quotation marks omitted). In determining whether a Rule 41(b) dismissal is 2 appropriate, the court must weigh the following factors: “(1) the public’s interest in expeditious 3 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 4 defendants; (4) the public policy favoring disposition of cases on their merits and (5) the 5 availability of less drastic sanctions.” Id. (quoting Henderson v. Duncan, 779 F.2d 1421 , 1423 6 (9th Cir.1986)). Dismissal is appropriate “where at least four factors support dismissal . . . or 7 where at least three factors strongly support dismissal.” Hernandez v. City of El Monte, 138 F.3d 8 393, 399 (9th Cir. 1998) (internal citation and quotation marks omitted). 9 Here, four of the five Henderson factors weigh in favor of dismissal. “The first two 10 factors—the public interest in expeditious resolution of litigation and the Court’s need to manage 11 its docket—relate to the “efficient administration of judicial business for the benefit of all litigants 12 with cases pending.” Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275 , 1279 13 (9th Cir. 1980). By failing to comply with Judge Westmore’s orders, failing to appear for multiple 14 pre-settlement telephonic scheduling conferences, and failing to respond to either Judge Westmore 15 or the undersigned’s orders to show cause, Plaintiffs have delayed adjudication of this action. 16 Non-compliance with procedural rules and the Court’s orders wastes “valuable time that [the 17 Court] could have devoted to other ... criminal and civil cases on its docket.” Ferdik v. Bonzelet, — 18 — 963 F.2d 1258, 1261 (9th Cir. 1992). 19 As for the third factor, while “the pendency of the lawsuit is not sufficiently prejudicial 20 itself to warrant dismissal,” the delay caused by Plaintiffs’ failure to prosecute this action despite 21 the Court’s orders weighs in favor of dismissal. Yourish v. California Amplifier, 191 F.3d 983 , 22 991 (9th Cir. 1999). 23 The fourth factor is the availability of less drastic sanctions. The Court already cautioned 24 Plaintiffs that failure to respond would result in dismissal of this action. (Dkt. No. 28.) Thus, the 25 Court has fulfilled its “obligation to warn the plaintiff that dismissal is imminent.” Oliva v. 26 Sullivan, 958 F.2d 272, 274 (9th Cir. 1992); see also Ferdick, 963 F.2d at 1262 (“A district court’s 27 warning to a party that failure to obey the court’s order will result in dismissal can satisfy the 1 dismissal. 2 The last factor, which favors disposition on the merits, by definition weighs against 3 || dismissal. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (“Public policy favors 4 || disposition of cases on the merits. Thus, this factor weighs against dismissal.”). 5 In sum, four of the five relevant factors weigh strongly in favor of dismissing this action in 6 || its entirety. See Pagtalunan, 291 F.3d at 643 (affirming dismissal where three factors favored 7 dismissal, while two factors weighed against dismissal). The Court therefore DISMISSES this 8 action pursuant to Federal Rule of Civil Procedure 41!. 9 IT IS SO ORDERED. 10 Dated: December 28, 2021 ) St ne a ACQUELINE SCOTT CORL 13 United States Magistrate Judge — 15 — — 16 — = 17 Z 18 — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — 28 ' All parties have consented to the jurisdiction of a magistrate judge. (Dkt. Nos. 8, 12.)