White v. PayPal, Inc. ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TODD WHITE, Case No.19-cv-08015-WHO 8 Plaintiff, ORDER DISMISSING CASE FOR 9 v. FAILURE TO PROSECUTE 10 PAYPAL, INC., Defendant. 11 12 13 More than five months have passed since I dismissed pro se plaintiff Todd White’s 14 complaint for lack of subject matter jurisdiction. Although I was skeptical that he could amend his 15 complaint to plausibly bring claims within this court’s jurisdiction, I allowed him leave to amend 16 his complaint. Nothing has been filed to date. For the reasons set forth below, I DISMISS this 17 case, without prejudice, for failure to prosecute. 18 BACKGROUND 19 On December 30, 2019, Magistrate Judge Donna M. Ryu issued an order to show cause as 20 to why White’s complaint should not be dismissed for lack of subject matter jurisdiction because 21 his complaint only alleged state law claims that did not give rise to federal question jurisdiction 22 and failed to establish the existence of diversity jurisdiction. Order to Show Cause [Dkt. No. 4]. 23 White filed a response on January 6, 2020 in which he claimed the defendant’s principal place of 24 business is in Delaware. Response to Order to Show Cause [Dkt. No. 7]. 25 But upon taking judicial notice of defendant’s corporate Statement of Information, 26 Magistrate Judge Ryu found that defendant’s principal executive office is in San Jose, California, 27 and therefore both parties are citizens of California. Request for Reassignment to District Judge 1 rejected White’s attempt to add a federal claim based on a criminal statute and recommended that 2 this case be dismissed, without leave to amend, for lack of subject matter jurisdiction. Id. White 3 did not file an objection to that recommendation. 4 On February 27, 2020, I adopted Magistrate Judge Ryu’s Report and Recommendation to 5 dismiss this in forma pauperis (“IFP”) action for lack of subject matter jurisdiction. Order 6 Adopting Magistrate Judge’s Report and Recommendation [Dkt. No. 10]. However, while I was 7 skeptical that a plausible claim can be brought that would give this court jurisdiction, I gave White 8 another opportunity to amend his complaint within twenty days. Id. No amended complaint has 9 been filed to date. 10 LEGAL STANDARD 11 It is well established that district courts have sua sponte authority to dismiss actions for 12 failure to prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Omstead v. Dell, 13 Inc., 594 F.3d 1081, 1084 (9th Cir. 2010). In deciding whether to dismiss for failure to prosecute 14 or comply with court orders, a district court must consider five factors: “(1) the public’s interest in 15 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 16 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 17 (5) the availability of less drastic sanctions.” Omstead, 594 F.3d at 1084 (quoting Henderson v. 18 Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). 19 DISCUSSION 20 The first two factors – public interest in expeditious resolution of litigation and the court’s 21 need to manage its docket – weigh in favor of dismissal. As described above, White has been 22 given multiple opportunities to amend his complaint to establish subject matter jurisdiction. More 23 than five months has passed since my last order and he has still not filed an amended complaint. 24 This failure to prosecute hinders my ability to move this case toward disposition and suggests that 25 White does not intend to litigate this action diligently. 26 The third factor – prejudice to defendant – also weighs in favor of dismissal. A rebuttable 27 presumption of prejudice to defendants arises when plaintiffs unreasonably delay prosecution of 1 presumption is unwarranted here. 2 The fourth factor — public policy in favor of deciding cases on the merits — ordinarily 3 || weighs against dismissal. However, it is a plaintiffs responsibility to move toward disposition at 4 a reasonable pace and avoid dilatory and evasive tactics. See Morris v. Morgan Stanley, 942 F.2d 5 648, 652 (9th Cir. 1991). White has not discharged this responsibility despite having been 6 || multiple opportunities by both me and Magistrate Judge Ryu to state a plausible claim that can be 7 || brought within this court’s jurisdiction. He was also granted sufficient time in which to amend his 8 complaint. Under these circumstances, the policy favoring resolution of disputes on the merits 9 || does not outweigh White’s failure to file responsive documents within the time granted. 10 The fifth factor — availability of less drastic sanctions — also weighs in favor of dismissal. 11 White had an opportunity to object to Magistrate Judge Ryu’s recommendation, but did not do so. 12 I then gave him leave to amend, but he did not do that as well. Without an amended complaint, 13 || the original complaint is deficient for the reasons stated in Magistrate Judge Ryu’s Report and 14 || Recommendation. 3 15 Altogether, the factors weigh in favor of dismissal 16 CONCLUSION 5 17 This action is hereby DISMISSED without prejudice for failure to prosecute and comply 18 with court orders pursuant to Federal Rule of Civil Procedure 41(b). 19 IT IS SO ORDERED. 20 Dated: August 10, 2020 . 21 LIAM H. ORRICK 22 United States District Judge 23 24 25 26 27 28