Rocky Bueno v. Cash 1 LLC ( 2024 )

JS-6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 ROCKY BUENO, ) Case No.: SACV 24-00068-CJC (JDEx) ) 12 ) ) Plaintiff, 13 ) ORDER DISMISSING ACTION ) WITHOUT PREJUDICE FOR LACK v. 14 ) OF PROSECUTION ) 15 CASH 1, LLC and EXPERIAN ) ) 16 INFORMATION SOLUTIONS, INC., ) ) 17 ) Defendants. ) 18 ) ) 19 ) 20 21 In this case, Plaintiff Rocky Bueno alleges Defendants Cash 1, LLC (“Cash 1”) 22 and Experian Information Solutions, Inc. (“Experian”) violated the Fair Credit Reporting 23 Act. (Dkt. 1 [Complaint].) Plaintiff served Defendants with the Complaint on January 24 25, 2024, making their answers due on February 15, 2024. (Dkts. 10–11.) On February 25 13, 2024, Plaintiff dismissed Cash 1 with prejudice. (Dkt. 12.) Experian did not file an 26 answer by the February 15, 2024 deadline, and Plaintiff took no action. On February 21, 27 2024, the Court issued an order to show cause (“OSC”) regarding dismissal for lack of 1 but Plaintiff failed to take any action. (Dkt. 13.) The Court stated that an appropriate 2 response to the OSC would include (1) Plaintiff’s request for entry of default or 3 Experian’s responsive pleading, (2) a stipulation extending Experian’s time to respond to 4 the Complaint, or (3) a notice of voluntary dismissal against Experian. (Id.) The Court 5 ordered Plaintiff to respond to the OSC by February 26, 2024, and admonished that 6 “[f]ailure to file a timely and appropriate response to this Order may result in dismissal of 7 Plaintiff’s claims against” Experian. (Id.) Two days after the deadline to respond to the 8 OSC, neither party has filed anything. 9 10 District courts “have inherent power to control their dockets and may impose 11 sanctions, including dismissal, in the exercise of that discretion.” Oliva v. Sullivan, 958 12 F.2d 272, 273 (9th Cir. 1992). When determining “whether to dismiss a claim for failure 13 to prosecute or failure to comply with a court order, the Court must weigh the following 14 factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 15 to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the 16 availability of less drastic alternatives; and (5) the public policy favoring disposition of 17 cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 18 19 These factors support dismissal. As to the first factor, “[t]he public’s interest in 20 expeditious resolution of litigation always favors dismissal.” Yourish v. Cal. Amplifier, 21 191 F.3d 983, 990 (9th Cir. 1999). The second factor also favors dismissal because “it is 22 incumbent upon the Court to manage its docket without being subject to routine 23 noncompliance of litigants.” Pagtalunan, 291 F.3d at 642. The Court had to issue an 24 OSC to encourage Plaintiff to comply with his responsibility to prosecute his case against 25 Experian diligently, without success. The third factor, the risk of prejudice to Experian, 26 at least marginally favors dismissal given Plaintiff’s unreasonable delay. See Neerman v. 27 Cates, 2023 WL 6787455, at *2 (C.D. Cal. Aug. 31, 2023) (“While pendency of a lawsuit 1 creates a presumption of prejudice.”) (cleaned up). Fourth, the public policy favoring 2 disposition on the merits generally weighs against dismissal, but “it logically rests upon 3 an inherent presumption a litigant . . . has manifested a diligent desire to prosecute his or 4 her claims.” Ewing v. Ruano, 2012 WL 2138159, at *2 (C.D. Cal. June 12, 2012). 5 Indeed, “it is the plaintiff’s responsibility to move a case toward a merits disposition.” 6 Thomas v. Kernan, 2019 WL 8888200, at *1 (C.D. Cal. July 10, 2019) (citing Morris v. 7 Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991)). Because of Plaintiff’s failure 8 to follow up on Experian’s failure to file timely a responsive pleading or to respond to the 9 Court’s OSC by the deadline, the public policy favoring disposition on the merits does 10 not weigh against dismissal. See Ewing, 2012 WL 2138159, at *2. 11 12 Finally, the Court’s attempt at less drastic alternatives failed. “[A] district court’s 13 warning to a party that his or her failure to obey the court’s order will result in dismissal 14 can satisfy the ‘consideration of alternatives’ requirement.” Ferdik, 963 F.2d at 1262; see 15 Alliant Credit Union, 2010 WL 3746727, at *2 (“The Court’s prior order warned Plaintiff 16 that the failure to file an amended complaint or a notice of voluntary dismissal would 17 result in the dismissal of the action.”). The Court warned Plaintiff that failure to respond 18 to the OSC would result in dismissal, yet he still failed to respond. (Dkt. 13.) 19 20 Taken together, the relevant factors weigh in favor of dismissal. Cf. Ferdik v. 21 Bonzelet, 963 F.2d 1258, 1263 (“Even if the prejudice factor as well as the fifth factor 22 regarding the public policy favoring disposition on the merits both weighed against 23 dismissal, they would not outweigh the other three factors that strongly support dismissal 24 here.”). Indeed, courts regularly dismiss cases when a plaintiff fails to seek appropriate 25 relief after a defendant fails to file a responsive pleading by a deadline. See, e,g., 26 Neerman, 2023 WL 6787455, at *2; Merriam v. Weltman Weinberg & Reis Co., 2021 27 WL 4699185, at *1 (C.D. Cal. July 14, 2021); Bereswill v. Clutchpoints, Inc., 2021 WL 1 || DISMISSED WITHOUT PREJUDICE for lack of prosecution and for failure to 2 ||comply with the Court’s OSC. 3 4 DATED: February 28, 2024 Ko 5 I _ f (TS 6 CORMAC J. CARNEY 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28