McConnell v. PeopleReady ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ALVIN MCCONNELL, Case No. 19-cv-08433-WHO 8 Plaintiff, ORDER DISMISSING CASE FOR 9 v. FAILURE TO PROSECUTE 10 PEOPLEREADY, Defendant. 11 12 13 On June 23, 2020, pro se plaintiff Alvin McConnell did not appear for a case management 14 conference. Dkt. No. 10. On July 15, 2020, defendant PeopleReady, Inc. (“PeopleReady”) moved 15 to dismiss his employment discrimination complaint on the grounds that it is barred by the 16 applicable statute of limitations. Defendant PeopleReady, Inc.’s Notice of Motion and Motion to 17 Dismiss Complaint [Dkt. No. 12]. McConnell failed to timely oppose the motion by July 29, 18 2020. Accordingly, on August 5, 2020, I issued an order to show cause for failure to prosecute 19 and allowed him to oppose the motion by August 21, 2020. Order to Show Cause for Failure to 20 Prosecute [Dkt. No. 16]. He has not filed an opposition or otherwise responded to my order. 21 It is well established that district courts have sua sponte authority to dismiss actions for 22 failure to prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Omstead v. Dell, 23 Inc., 594 F.3d 1081, 1084 (9th Cir. 2010). In deciding whether to dismiss for failure to prosecute 24 or comply with court orders, a district court must consider five factors: “(1) the public’s interest in 25 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 26 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 27 (5) the availability of less drastic sanctions.” Omstead, 594 F.3d at 1084 (quoting Henderson v. 1 The first two factors – public interest in expeditious resolution of litigation and the court’s 2 need to manage its docket – weigh in favor of dismissal. As described above, McConnell failed to 3 appear at the initial case management conference. Then, after PeopleReady filed a motion to 4 dismiss, McConnell failed to timely oppose it. I issued an order to show cause for failure to 5 prosecute to give him another chance to file an opposition, effectively extending the response 6 deadline from July 29 to August 21, 2020. He still has not filed an opposition or otherwise 7 responded to my order. This failure to prosecute hinders my ability to move this case forward 8 toward disposition and suggests that McConnell does not intend to litigate this action diligently. 9 The third factor – prejudice to defendant – also weighs in favor of dismissal. A rebuttable 10 presumption of prejudice to defendants arises when plaintiffs unreasonably delay prosecution of 11 an action. See In re Eisen, 31 F.3d 1447, 1452 – 53 (9th Cir. 1994). Nothing suggests such a 12 presumption is unwarranted here. 13 The fourth factor – public policy in favor of deciding cases on the merits – ordinarily 14 weighs against dismissal. However, it is a plaintiff’s responsibility to move toward disposition at 15 a reasonable pace and avoid dilatory and evasive tactics. See Morris v. Morgan Stanley, 942 F.2d 16 648, 652 (9th Cir. 1991). McConnell has not discharged this responsibility despite multiple 17 opportunities to oppose the pending motion to dismiss. He was granted sufficient time in which to 18 oppose the motion. Under these circumstances, the policy favoring resolution of disputes on the 19 merits does not outweigh McConnell’s failure to file responsive documents within the time 20 granted. 21 The fifth factor – availability of less drastic sanctions – also weighs in favor of dismissal. 22 McConnell has the opportunity to oppose the motion to dismiss but did not do so. I then gave him 23 more time to oppose the motion, but he again failed to do so. 24 For the foregoing reasons, I find that the factors weigh in favor of dismissal. This action is 25 hereby DISMISSED without prejudice for failure to prosecute and comply with court orders 26 27 1 pursuant to Federal Rule of Civil Procedure 41(b). 2 IT IS SO ORDERED. 3 Dated: August 31, 2020 iam H. Orrick 5 United States District Judge 6 7 8 9 10 11 12 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28