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6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERTO SAUCEDO PEREZ, Case No. 8:19-cv-00265-FMO-SHK 12 Plaintiff, 13 v. ORDER DISMISSING CASE 14 CITY OF SANTA ANA, 15 Defendant. 16 17 I. BACKGROUND 18 On February 11, 2019, Plaintiff Roberto Saucedo Perez (“Plaintiff”) filed a 19 Complaint under

against the City of Santa Ana. Electronic Case 20 Filing Number (“ECF No.”) 1, Complaint. On May 14, 2019—two days after his 21 90-day deadline to serve the Complaint under Federal Rule of Civil Procedure 22 4(m)—Plaintiff filed a Request for Extension (“Request”) of time to serve the 23 Summons and Complaint and to file a First Amended Complaint (“FAC”). ECF 24 No. 5, Request. Plaintiff stated that the extension was necessary because of 25 “Plaintiff’s inability to ascertain the identities of more than (10) ‘Jon Doe’ officers 26 involved in this civil rights action.”

Plaintiff requested an additional ninety 27 days to serve and file these documents.

1 On May 21, 2019, the Court denied Plaintiff’s request for an extension to file 2 his original Complaint because Plaintiff sought to amend his Complaint. ECF No. 3 6, Order Denying Request. Instead, the Court allowed Plaintiff an additional thirty 4 days—until June 19, 2019—to “(1) file his FAC with the Court and (2) complete a 5 Summons AO-440 Form for his FAC and follow the process for issuance and 6 service of the Summons and FAC on all named Defendants as set forth in the 7 Federal Rules of Civil Procedure.”

(citing Fed. R. Civ. P. 4(a)-4(c)). The 8 Court warned Plaintiff, however, that if he “fail[ed] to timely file or serve the FAC, 9 the Court may recommend that this action be dismissed for failure to prosecute and 10 failure to comply with the Court’s orders.”

11 Plaintiff failed to timely file his FAC or complete a Summons AO-440 Form. 12 Therefore, one week after Plaintiff’s deadline had passed—on June 26, 2019—the 13 Court ordered Plaintiff to show cause (“OSC”), by July 10, 2019, why the case 14 should not be dismissed for failure to prosecute or follow Court orders. ECF No. 7, 15 OSC. Plaintiff was ordered to either: 16 (a) advise the Court that he does not desire to pursue this action; (b) if 17 Plaintiff does desire to pursue this action, show good cause in writing, 18 if any exists, why Plaintiff has not timely filed his FAC and Summons 19 and why the Court should not recommend that this action be dismissed 20 for failure to prosecute and comply with the Court’s prior order; or (c) 21 file a FAC and Summons. 22

Plaintiff was further warned that if he failed to do any of the above-provided 23 options, “the Court will deem such failure a further violation of a Court order and 24 further evidence of a lack of prosecution on Plaintiff’s part, which will result in the 25 dismissal of the case under Federal Rule of Civil Procedure 41(b) and Local Rule 26 41-1.”

(emphasis added). 27 To date—nearly seven months past the provided deadline—Plaintiff has 1 warnings that failure to do so would subject this case to dismissal for failure to 2 prosecute and follow Court orders. 3 II. DISCUSSION 4 It is well established that district courts have sua sponte authority to dismiss 5 actions for failure to prosecute or to comply with court orders. See Fed. R. Civ. P. 6 41(b); Omstead v. Dell, Inc.,

(9th Cir. 2010) (stating standard 7 applied in dismissal for failure to prosecute) abrogated on other grounds; Hells 8 Canyon Pres. Council v. U.S. Forest Serv.,

(9th Cir. 2005) 9 (stating courts may dismiss an action under Federal Rule of Civil Procedure 41(b) 10 sua sponte for a plaintiff’s failure to prosecute or comply with the Federal Rules of 11 Civil Procedure or the court’s orders); Ferdik v. Bonzelet,

, 1260 12 (9th Cir. 1992) (ordering dismissal for failure to comply with court orders). 13 In deciding whether to dismiss for failure to prosecute or comply with court 14 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) 16 the risk of prejudice to the defendants; (4) the public policy favoring disposition of 17 cases on their merits; and (5) the availability of less drastic sanctions.’” Omstead, 18

(quoting Henderson v. Duncan,

(9th Cir. 19 1986)). 20 Here, the first two factors—public interest in expeditious resolution of 21 litigation and the court’s need to manage its docket—weigh in favor of dismissal. 22 Plaintiff has failed to respond to Court orders and it has been nearly seven months 23 since Plaintiff’s last filing deadline expired. This failure to prosecute and to follow 24 court orders hinders the Court’s ability to move this case toward disposition and 25 suggests that Plaintiff does not intend to litigate this action diligently. See 26 Omstead,

. 27 The third factor—prejudice to Defendant—does not weigh in favor of 1 the other factors combine to weigh in favor of dismissal. See In re Eisen,

1447, 1452-53 (9th Cir. 1994) (‘[T]he failure to prosecute diligently is sufficient by 3 itself to justify a dismissal, even in the absence of a showing of actual prejudice to 4 the defendant.’” (citation omitted)). 5 The fourth factor—public policy in favor of deciding cases on the merits— 6 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to move 7 litigation towards disposition at a reasonable pace and to avoid dilatory and evasive 8 tactics. See Morris v. Morgan Stanley,

(9th Cir. 1991). Plaintiff 9 has not met this responsibility despite having been: (1) instructed on his 10 responsibilities; (2) granted sufficient time in which to discharge them; and (3) 11 warned of the consequences of failure to do so. See ECF Nos. 6, 7. Under these 12 circumstances, the policy favoring resolution of disputes on the merits does not 13 outweigh Plaintiff’s failure to obey Court orders or to file responsive documents 14 within the time granted. 15 The fifth factor—availability of less drastic sanctions—also weighs in favor 16 of dismissal. The Court cannot move the case toward disposition without 17 Plaintiff’s compliance with Court orders or participation in this litigation. Plaintiff 18 has shown he is either unwilling or unable to comply with Court orders by failing to 19 file responsive documents or otherwise cooperate in prosecuting this action. 20 Specifically, Plaintiff has not filed any papers in this case for nearly seven months, 21 including his response to the Court’s OSC. 22 Accordingly, because: (1) four out of the five Omstead factors weigh in favor 23 of dismissal; (2) it appears that Plaintiff has abandoned this litigation; and (3) 24 Plaintiff has defied multiple Court orders, the Court DISMISSES this case, without 25 prejudice. 26 III. ORDER 27 Based on the foregoing, IT IS ORDERED THAT judgment be entered 1 | Dated: February 13, 2020 2 oN 4 5 | Presented by: 6 KA ee 7 | HONORABLE SHASHI H. KEWALRAMANI g United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28