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4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 EDWARD PALMA, Case No. CV 21-07424-DMG-SHK 11

12 Plaintiff, v. 13 ORDER RE DISMISSAL OF 14 ERICA ARNOLD, et al., ACTION

15 Defendants. 16

17 18 For the following reasons, this action is DISMISSED without prejudice. 19 I. BACKGROUND 20 On September 16, 2021, Plaintiff Edward Palma (“Plaintiff”) filed a 21 complaint (“Complaint” or “Compl.”) against Erica Arnold, Child Protective 22 Services/Child Support Services Department, and the “Unconstitutional Foreign 23 Corporation AKA the State of California” (collectively, “Defendants”) alleging 24 what appear to be various claims of fraud, constitutional violations, and statutory 25 violations. Electronic Case Filing Number (“ECF No.”) 1, Compl. Plaintiff paid 26 the $402 filing fee on September 16, 2021. See id. On September 21, 2021, 27 Plaintiff was ordered to show cause (“OSC”) by October 21, 2021 why the case 1 Plaintiff was warned that failure to timely respond to the OSC could “result in the 2 case being dismissed under Federal Rule of Civil Procedure 41 for failure to 3 prosecute and follow Court orders.” Id. at 3 (emphasis from original removed). As 4 of the date of this Order, Plaintiff has failed to respond to the Court’s OSC, or 5 otherwise participate in this litigation. 6 II. LEGAL STANDARD 7 District courts have sua sponte authority to dismiss actions for failure to 8 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash 9 R.R. Co.,

(1962); Hells Canyon Pres. Council v. U.S. Forest 10 Serv.,

(9th Cir. 2005) (stating courts may dismiss an action under 11 Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 12 or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. 13 Bonzelet,

(9th Cir. 1992) (ordering dismissal for failure to 14 comply with court orders). 15 In deciding whether to dismiss for failure to prosecute or comply with court 16 orders, a district court must consider five factors: “(1) the public’s interest in 17 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 18 risk of prejudice to the defendants; (4) the public policy favoring disposition of 19 cases on their merits; and (5) the availability of less drastic sanctions.” Henderson 20 v. Duncan,

(9th Cir. 1986); see also Pagtalunan v. Galaza, 291

(9th Cir. 2002) (setting out five factors similar to those in Henderson). 22 “Dismissal is appropriate ‘where at least four factors support dismissal, or where at 23 least three factors ‘strongly’ support dismissal.’” Neal v. Reslan, No. CV 19-09291 24 PA (ASx),

, at *1 (C.D. Cal. Jan. 16, 2020) (quoting Hernandez v. 25 City of El Monte,

(9th Cir. 1998) (internal citations omitted) 26 (citing Ferdik,

)). In a case involving sua sponte dismissal, 27 however, the fifth Henderson factor regarding the availability of less drastic 1 III. DISCUSSION 2 Here, the first two factors—public interest in expeditious resolution of 3 litigation and the Court’s need to manage its docket—weigh in favor of dismissal. 4 Despite being instructed that this Court lacks subject matter jurisdiction to hear the 5 case and being warned that failure to respond to the OSC could result in dismissal of 6 this case for failure to prosecute and follow Court orders, Plaintiff has failed to do so 7 or otherwise participate in this litigation. This failure to prosecute and follow Court 8 orders hinders the Court’s ability to move this case toward disposition and suggests 9 that Plaintiff does not intend to litigate this action diligently. 10 The third factor—prejudice to Defendant—also weighs in favor of dismissal. 11 A rebuttable presumption of prejudice to a defendant arises when a plaintiff 12 unreasonably delays prosecuting an action. See In re Eisen,

, 1452-53 13 (9th Cir. 1994) (citations omitted). Nothing suggests such a presumption is 14 unwarranted in this case, considering that Plaintiff has failed to comply with the 15 Court’s OSC, and Plaintiff has not offered any excuse for his failure to comply with 16 the OSC and respond in a timely manner. Thus, this “prejudice” element favors 17 dismissal. 18 The fourth factor—public policy in favor of deciding cases on the merits— 19 ordinarily weighs against dismissal. It is Plaintiff’s responsibility, however, to 20 move litigation towards disposition at a reasonable pace and to avoid dilatory and 21 evasive tactics. See Morris v. Morgan Stanley,

(9th Cir. 1991). 22 Plaintiff has not met this responsibility despite having been: (1) instructed on his 23 responsibilities; (2) granted sufficient time in which to discharge them; and 24 (3) warned of the consequences of failure to do so. Under these circumstances, 25 though this policy favors Plaintiff, it does not outweigh Plaintiff’s repeated failure to 26 obey Court orders or to file responsive documents within the time granted. 27 / / / 1 The fifth factor—availability of less drastic sanctions—also weighs in favor 2 | of dismissal. The Court cannot move the case toward disposition without □□□□□□□□□□ 3 | compliance with Court orders or participation in this litigation. Despite the Court’s 4 | attempt to obtain a response, Plaintiff has shown he is either unwilling or unable to 5 | comply with Court orders by failing to file responsive documents and failing to 6 | otherwise cooperate in prosecuting this action. The Court is not aware of any lesser 7 | sanction that is available in this case. See Henderson,

(“The 8 | district court need not exhaust every sanction short of dismissal before finally 9 | dismissing a case but must explore possible and meaningful alternatives.’’) (citation 10 | omitted); Roman v. Smith, No. 2:18-07909 PA (ADS),

, at *1 11 | (C.D. Cal. Nov. 18, 2019). 12 Accordingly, the Court finds that dismissal of this action, without prejudice, 13 | is appropriate here. 14 IV. CONCLUSION 15 For the reasons discussed above, IT IS HEREBY ORDERED that this 16 | action case is DISMISSED without prejudice. 17 18 1g | DATED: November 23, 2021 Rather pn. Aaa 50 UNITEIWSTATES DISTRICT JUDGE 21 22 | Presented by: 23 24 WW 25 | HONORABLE SHASHI H. KEWALRAMANI | United States Magistrate Judge 27 28