Case 5:21-cv-00147-DMG-SHK Document 16 Filed 02/09/22 Page 1 of 5 Page ID #:187

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 ADA MARIA BENSON, Case No. EDCV 21-00147-DMG-SHK 13 Plaintiff, ORDER RE DISMISSAL OF 14 v. ACTION 15 ANGEL VIEW CLEARANCE STORES, 16 Defendant. 17 18 For the following reasons, this case is DISMISSED without prejudice. 19 I. BACKGROUND 20 On January 20, 2021, Plaintiff Ada Maria Benson (“Plaintiff”), proceeding 21 pro se and in forma pauperis (“IFP”), filed a Complaint (“Complaint” or “Compl.”) 22 under 42 U.S.C § 1983 (“§ 1983”) against Angel View Clearance Center and Angel 23 View Corporation (collectively, “Angel View Entities”) alleging that the Angel 24 View Entities violated her constitutional rights when they prevented Plaintiff from 25 making purchases at a store the Angel View Entities operate. Electronic Case Filing 26 Number (“ECF No.”) 1, Compl. at 4. On January 29, 2021, the Court issued an 27 Order Dismissing Complaint, Without Prejudice and With Leave to Amend 28 Case 5:21-cv-00147-DMG-SHK Document 16 Filed 02/09/22 Page 2 of 5 Page ID #:188

(“Compl. ODLA”). ECF No. 5, Compl. ODLA. On February 12, 2021, Plaintiff 1 filed a First Amended Complaint (“FAC”), alleging claims against Defendant Angel 2 View Clearance Stores (“Defendant”). ECF No. 6, FAC. 3 On July 22, 2021, Plaintiff filed a notice of appeal to the Ninth Circuit, 4 depriving this Court of jurisdiction. ECF No. 8, Not. of Appeal. On August 13, 5 2021, the Ninth Circuit dismissed the appeal for lack of jurisdiction, ECF No. 11, 6 Order from Ninth Circuit, and issued its mandate on September 7, 2021, ECF No. 7 12, Mandate. 8 9 On October 10, 2021, the Court issued an Order Dismissing the FAC, 10 Without Prejudice and With Leave to Amend (“ODLA”). ECF No. 13, ODLA. The 11 ODLA required Plaintiff to file a Second Amended Complaint (“SAC”), if Plaintiff 12 desired to do so, or to advise the Court that Plaintiff intended to rely on the 13 allegations in the First Amended Complaint (“FAC”) by October 26, 2021. See id. 14 at 15. On October 28, 2021, the Court received Plaintiff Ada Maria Benson’s 15 (“Plaintiff”) Response (“Response”). ECF No. 14, Response. Plaintiff’s Response 16 appears to object to the ODLA. See id. Rather than filing a SAC or notifying the 17 Court that Plaintiff intended to rely on the allegations in the FAC, Plaintiff, in her 18 Response, argued that the District Court did not have jurisdiction over her case 19 because it was pending before the United States Court of Appeals for the Ninth 20 Circuit (“Ninth Circuit”). See id. at 2. 21 On November 4, 2021, the Court issued a Final Order to Show Cause (“Final 22 OSC”), wherein, Plaintiff was “given one final opportunity to comply with the 23 Court’s ODLA” by November 18, 2021. ECF No. 15, Final OSC at 1 (emphasis 24 added). Plaintiff was ordered to show cause why the case should not be dismissed 25 by either: (a) “advis[ing] the Court that Plaintiff does not desire to pursue this 26 action”; (b) “show[ing] good cause in writing, if any exists, why Plaintiff has not 27 timely filed with the Court a SAC”; or (c) “filing a SAC fixing the deficiencies 28 consistent with the Court’s Order in the SAC if Plaintiff wishes to continue 2 Case 5:21-cv-00147-DMG-SHK Document 16 Filed 02/09/22 Page 3 of 5 Page ID #:189

litigating those claims.” Id. Plaintiff was warned that “if Plaintiff fail[ed] to move 1 forward with any of the options listed above, the Court may deem such failure as a 2 further violation of a Court order justifying dismissal, and the Court may also deem 3 such a failure as further evidence of a lack of prosecution on Plaintiff’s part.” Id. at 4 2. As of the date of this Order, Plaintiff has failed to file a SAC, respond to the 5 Court’s Final OSC, or otherwise participate in this litigation. 6 II. LEGAL STANDARD 7 District courts have sua sponte authority to dismiss actions for failure to 8 9 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash 10 R.R. Co.,

(1962); Hells Canyon Pres. Council v. U.S. Forest 11 Serv.,

, 689 (9th Cir. 2005) (stating courts may dismiss an action under 12 Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 13 or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. 14 Bonzelet,

, 1260 (9th Cir. 1992) (ordering dismissal for failure to 15 comply with court orders). 16 In deciding whether to dismiss for failure to prosecute or comply with court 17 orders, a district court must consider five factors: “(1) the public’s interest in 18 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 19 risk of prejudice to the defendants; (4) the public policy favoring disposition of 20 cases on their merits; and (5) the availability of less drastic sanctions.” Henderson 21 v. Duncan,

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

(9th Cir. 2002) (setting out five factors similar to those in Henderson). 23 “Dismissal is appropriate ‘where at least four factors support dismissal, or where at 24 least three factors ‘strongly’ support dismissal.’” Neal v. Reslan, No. CV 19-09291 25 PA (ASx),

, at *1 (C.D. Cal. Jan. 16, 2020) (quoting Hernandez v. 26 City of El Monte,

(9th Cir. 1998) (internal citations omitted) 27 (citing Ferdik, 963 F.2d at 1263)). In a case involving sua sponte dismissal, 28 3 Case 5:21-cv-00147-DMG-SHK Document 16 Filed 02/09/22 Page 4 of 5 Page ID #:190

however, the fifth Henderson factor regarding the availability of less drastic 1 sanctions warrants special focus. Hernandez,

. 2 III. DISCUSSION 3 Here, the first two factors—public interest in expeditious resolution of 4 litigation and the Court’s need to manage its docket—weigh in favor of dismissal. 5 Despite being warned in the Final OSC that Plaintiff had “one final opportunity” to 6 comply with the Court’s ODLA and that failure to respond to the Final OSC could 7 be deemed further evidence of a lack of prosecution and a further violation of a 8 9 Court order justifying dismissal, Plaintiff has failed to do so. ECF No. 15, Final 10 OSC at 1. This failure to prosecute and follow Court orders hinders the Court’s 11 ability to move this case toward disposition and suggests that Plaintiff does not 12 intend to litigate this action diligently. 13 The third factor—prejudice to Defendant—also weighs in favor of dismissal. 14 A rebuttable presumption of prejudice to a defendant arises when a plaintiff 15 unreasonably delays prosecuting an action. See In re Eisen,

, 1452-53 16 (9th Cir. 1994) (citations omitted). Nothing suggests such a presumption is 17 unwarranted in this case, considering that Plaintiff has failed to comply with the 18 Court’s ODLA or Final OSC and Plaintiff has not offered any excuse for her failure 19 to comply with multiple Court orders or to respond in a timely manner. Thus, this 20 “prejudice” element favors dismissal. 21 The fourth factor—public policy in favor of deciding cases on the merits— 22 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to move 23 litigation towards disposition at a reasonable pace and to avoid dilatory and evasive 24 tactics. See Morris v. Morgan Stanley,

(9th Cir. 1991). Plaintiff 25 has not met this responsibility despite having been: (1) instructed on her 26 responsibilities; (2) granted sufficient time in which to discharge them; and 27 (3) warned of the consequences of failure to do so. Under these circumstances, 28 / / / 4 Case 4:21-cv-00147-DMG-SHK Document Filed 02/09/22 Page5of5 Page ID#:191

, | though this policy favors Plaintiff, it does not outweigh Plaintiff's repeated failure to 7 | obey Court orders or to file responsive documents within the time granted. 3 The fifth factor—availability of less drastic sanctions—also weighs in favor 4 | of dismissal. The Court cannot move the case toward disposition without Plaintiff's 5 | compliance with Court orders or participation in this litigation. Despite the Court’s 6 | attempt to obtain a response, Plaintiff has shown she is either unwilling or unable to 7 | comply with Court orders by failing to file responsive documents and failing to g | otherwise cooperate in prosecuting this action. The Court is not aware of any lesser g | sanction that is available in this case. See Henderson,

(“The 19 | district court need not exhaust every sanction short of dismissal before finally 11 | dismissing a case but must explore possible and meaningful alternatives.”) (citation 12 | omitted); Roman v. Smith, No. 2:18-07909 PA (ADS),

, at *1 13 | (C.D. Cal. Nov. 18, 2019). 14 Accordingly, dismissal of this action, without prejudice, 1s appropriate here. 15 IV. CONCLUSION 16 For the reasons discussed above, IT IS HEREBY ORDERED that the 17 | above-captioned action is DISMISSED without prejudice. 18 Dn y 19 DATED: February 9, 2022 MOLY MEE perf, “ 0 United Stat§# District Judge 21 | Presented by: 22 Wee 23 | HONORABLE SHASHI H. KEWALRAMANI 4 United States Magistrate Judge 25 26 27 28