Jorge V. Ortiz v. County of Orange Social Services Agency ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JORGE V. ORTIZ, Case No. SACV 21-01140-JWH (RAO) 12 Plaintiff, 13 v. ORDER DISMISSING COMPLAINT 14 COUNTY OF ORANGE SOCIAL SERVICES AGENCY, 15 Defendant. 16 17 18 19 20 21 22 23 24 25 26 27 28 1 I. INTRODUCTION 2 On June 30, 2021, Plaintiff Jorge V. Ortiz (“Plaintiff”), proceeding pro se 3 and in forma pauperis, filed a Complaint pursuant to 42 U.S.C. § 1983. Dkt. No. 1. 4 The Court screened the Complaint, and on July 13, 2021, the Court dismissed the 5 Complaint with leave to amend (“July 13, 2021, order”). Dkt. No. 6. The Court’s 6 July 13, 2021 order, gave Plaintiff 30 days to file an amended complaint and 7 warned Plaintiff that failure to file an amended complaint would result in dismissal 8 of this action for failure to prosecute. Id. 9 On July 30, 2021, Plaintiff filed an objection to the July 13, 2021, order and 10 requested review by the District Judge. Dkt. No. 7. On October 4, 2021, Plaintiff’s 11 objection was overruled and Plaintiff’s request for review was denied. Dkt. No. 8. 12 The deadline for Plaintiff to file a First Amended Complaint was extended to 13 October 25, 2021. Id. 14 Because Plaintiff did not file an amended complaint by the October 25, 2021, 15 deadline, the Court issued an order to show cause (“OSC”) on November 15, 2021. 16 Dkt. No. 9. The Court ordered Plaintiff to show cause by December 6, 2021, why 17 this action should not be dismissed for failure to prosecute. Id. The OSC provided 18 that Plaintiff could discharge the OSC by filing an amended complaint on or before 19 the same December 6, 2021, deadline. Id. The OSC warned Plaintiff that his 20 failure to file a timely response to the OSC could lead to dismissal of his action for 21 failure to prosecute. Id. To date, Plaintiff has not responded to the OSC or filed an 22 amended complaint. 23 II. DISCUSSION 24 Rule 41 of the Federal Rules of Civil Procedure governs the dismissal of 25 federal actions. Rule 41(b) grants district courts authority to dismiss actions for 26 failure to comply with court orders or for failure to prosecute. Ferdik v. Bonzelet, 27 963 F.2d 1258, 1260-63 (9th Cir. 1992); Link v. Wabash R.R. Co., 370 U.S. 626, 28 629-31 (1962). District courts may exercise their inherent power to control their 1 dockets by imposing sanctions, including, where appropriate, the dismissal of a 2 case. Ferdik, 963 F.2d at 1260. 3 A court must weigh five factors when determining whether to dismiss an 4 action for failure to prosecute or failure to comply with court orders: 5 (1) the public’s interest in expeditious resolution of litigation; 6 (2) the court’s need to manage its docket; 7 (3) the risk of prejudice to defendants; 8 (4) the availability of less drastic alternatives; and 9 (5) the public policy favoring disposition of cases on their merits. 10 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Dismissal is appropriate 11 where at least four factors support dismissal, or where three factors “strongly 12 support” dismissal. Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 13 1990). 14 Here, the first and second factors (the public’s interest in expeditious 15 resolution and the Court’s need to manage its docket) strongly favor dismissal. 16 “[T]he public’s interest in expeditious resolution of litigation always favors 17 dismissal.” Id. Here, Plaintiff has failed to file the amended complaint by the 18 court-ordered deadline. Moreover, Plaintiff did not respond to the Court’s OSC 19 why this action should not be dismissed for failure to prosecute. Plaintiff’s 20 “noncompliance has caused [this] action to come to a complete halt, thereby 21 allowing [him] to control the pace of the docket rather than the Court.” Yourish, 22 191 F.3d at 990. Plaintiff’s inaction interferes with the public’s interest in 23 expeditious resolution of the litigation and the Court’s need to manage its docket. 24 Accordingly, these two factors weigh strongly in favor of dismissal. 25 The third factor (the risk of prejudice to the defendant) requires a defendant 26 to establish “that plaintiff’s actions impaired defendant’s ability to proceed to trial 27 or threatened to interfere with the rightful decision of the case.” Pagtalunan, 291 28 F.3d at 642. “Limited delays and the prejudice to a defendant from the pendency of 1 a lawsuit are realities of the system that have to be accepted, provided the prejudice 2 is not compounded by ‘unreasonable’ delays.” Ash v. Cvetkov, 739 F.2d 493, 496 3 (9th Cir. 1984). However, “the risk of prejudice to the defendant is related to the 4 plaintiff’s reason for defaulting in failing to timely” act. Yourish, 191 F.3d at 991. 5 The better the reason, the less likely it is that the third factor will favor dismissal. 6 See id. (finding that the plaintiff’s “paltry excuse for his default on the judge’s order 7 indicate[d] that there was sufficient prejudice to Defendants from the delay that [the 8 third] factor also strongly favor[ed] dismissal”). The Ninth Circuit has stated that 9 “the failure to prosecute diligently is sufficient by itself to justify a dismissal, even 10 in the absence of a showing of actual prejudice to the defendant from the failure.” 11 Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976); see also In re Eisen, 31 12 F.3d 1447, 1452-53 (9th Cir. 1994) (quoting Anderson). Here, the failure to file an 13 amended complaint and to respond to the Court’s OSC indicates Plaintiff’s loss of 14 interest in the matter. The Court finds that the third factor weighs in favor of 15 dismissal. 16 The fourth factor (the availability of less drastic alternatives) also weighs in 17 favor of dismissal. The Court has provided Plaintiff sufficient time to file an 18 amended complaint. When Plaintiff did not file an amended complaint by the 19 deadline imposed, the Court issued an OSC, allowing Plaintiff another opportunity 20 to file. The Court cautioned Plaintiff that a failure to respond to the OSC may 21 result in dismissal of the action for failure to prosecute, see Dkt. No. 9, yet Plaintiff 22 has failed to file an amended complaint or otherwise respond to the Court’s orders. 23 Plaintiff’s failure to participate in his own lawsuit supports that no lesser sanction 24 will be effective. Also, the Court is dismissing this action without prejudice, a far 25 less drastic alternative than dismissal with prejudice. Accordingly, this factor 26 favors dismissal. See Watts v. Kernan, 336 Fed. App’x 747 (9th Cir. 2009) 27 (affirming dismissal of action for failure to prosecute where prisoner plaintiff failed 28 1 || to respond to a motion to dismiss after a district court granted several extensions of 2 || time and warned that failure to file an opposition could result in dismissal). 3 Regarding the fifth factor, public policy generally favors the disposition of 4 || cases on their merits. Pagtalunan, 291 F.3d at 643. However, it is the 5 || responsibility of the moving party to move the case toward a timely disposition on 6 || the merits, and to refrain from dilatory and evasive tactics. Morris v. Morgan 7 || Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991). Thus, it does not appear that 8 || retention of this case would increase the likelihood of the matter being resolved on 9 || its merits. This factor does not weigh in favor of or against dismissal. 10 Four factors favor dismissal and one factor is neutral. Accordingly, dismissal 11 || of this action without prejudice is appropriate. 12 | I. CONCLUSION 13 For the reasons set forth above, it is ORDERED that this case is 14 | DISMISSED without prejudice. 15 IT IS SO ORDERED. 16 17 || DATED: December 29, 2021 VY 18 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28