Case 2:21-cv-06256-RGK-SHK Document 19 Filed 02/17/22 Page 1 of 6 Page ID #:41

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8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 12 ANDREW S. KINDLE, Case No. 2:21-cv-06256-RGK-SHK 13 Plaintiff, 14 v. ORDER DISMISSING CASE 15 AAA AUTOMOBILE CLUB OF 16 SOUTHERN CALIFORNIA, 17 Defendant.

18 19 For the following reasons, this case is DISMISSED without prejudice. 20 I. BACKGROUND 21 On August 3, 2021, Plaintiff Andrew Kindle (“Plaintiff”), proceeding pro se 22 and in forma pauperis (“IFP”), filed a complaint (“Complaint” or “Compl.”) against 23 AAA Automobile Club of Southern California (“AAA” or “Defendant”) alleging 24 violations of “42 U.S.C. § 1981 and Civil Rights Act Title IV.” Electronic Case 25 Filing Number (“ECF No.”) 1, Compl. at 4. On August 6, 2021, the Court issued an 26 Order mandating the service of the summons and Complaint on Defendant. ECF 27 No. 6, Order Re: Service at 1. On August 27, 2021, Plaintiff filed a Proof of 28 Service. ECF No. 8. It appears that Plaintiff served the summons and Complaint on Case 2:21-cv-06256-RGK-SHK Document 19 Filed 02/17/22 Page 2 of 6 Page ID #:42

1 Defendant, but Defendant did not file an answer or otherwise respond to the 2 Complaint. Generally, defendants must answer or otherwise respond to a complaint 3 within 21 days after service. See Fed. R. Civ. Proc. 12(a)(1). 4 Consequently, on September 29, 2021, Plaintiff filed a document requesting 5 an entry of a Default Judgment against Defendant. ECF No. 11. However, rather 6 than requesting that a default be entered by the Clerk, Plaintiff’s document 7 improperly sought to have the Court grant a default judgment against Defendant. 8 See id. On October 8, 2021, the Clerk issued a Notice of Deficiency 9 Default/Default Judgment because there was No Entry of Default against Defendant 10 on file. ECF No. 12. On October 18, 2021, Plaintiff filed a second Request for 11 Entry of Default with respect to Defendant. ECF No. 13. However, on October 19, 12 2021, the Clerk issued a Notice of Deficiency due to deficiencies in Plaintiff’s proof 13 of service, including a lack of proof of service/waiver of service on file and the 14 absence of a return receipt of service. ECF No. 14. On October 22, 2021, Plaintiff 15 filed a third Request for Entry of Default with respect to Defendant. ECF No. 15. 16 In it, Plaintiff attached a receipt but failed to properly indicate that the summons and 17 Complaint was served or indicate upon whom it was served. Id. Thus, on October 18 28, 2021, the Clerk issued a Notice of Deficiency due to the deficiencies in 19 Plaintiff’s proof of service. ECF No. 16. 20 On December 15, 2021, the Court issued an Order to Show Cause (“OSC”), 21 by December 29, 2021, why the case should not be dismissed for failure to 22 prosecute. ECF No. 17, OSC. Plaintiff was instructed that the OSC would be 23 discharged if Plaintiff timely filed a motion for the entry of default judgment with 24 respect to Defendant. Id. at 2. On December 27, 2021, the mail copy of the OSC 25 was returned to the Court as it was undeliverable to Plaintiff at the address on file 26 for Plaintiff and it was unable to be forwarded. ECF No. 18, Returned Mail. As of 27 the date of this Order, Plaintiff has failed to file a motion for the entry of default 28 judgment, respond to the Court’s OSC, or otherwise participate in this litigation. 2 Case 2:21-cv-06256-RGK-SHK Document 19 Filed 02/17/22 Page3of6 Page ID #:43

1 Il. LEGAL STANDARD 2 A. Failure to Prosecute 3 District courts have sua sponte authority to dismiss actions for failure to 4 | prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash 5 | RR. Co., 370 US. 626, 629-30 (1962); Hells Canyon Pres. Council v. U.S. Forest 6 | Serv.,

(9th Cir. 2005) (stating courts may dismiss an action under 7 | Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute 8 | or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. 9 | Bonzelet,

(9th Cir. 1992) (ordering dismissal for failure to 10 | comply with court orders). 11 In deciding whether to dismiss for failure to prosecute or comply with court 12 | orders, a district court must consider five factors: “(1) the public’s interest in 13 | expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 14 | msk of prejudice to the defendants; (4) the public policy favoring disposition of 15 | cases on their merits; and (5) the availability of less drastic sanctions.” Henderson 16 | v. Duncan,

(9th Cir. 1986): see also Pagtalunan v. Galaza, 291 17 | F.3d 639, 642 (9th Cir. 2002) (setting out five factors similar to those in Henderson). 18 | “Dismissal is appropriate ‘where at least four factors support dismissal, or where at 19 | least three factors ‘strongly’ support dismissal.’” Neal v. Reslan, No. CV 19-09291 20 | PA (ASx),

, at *1 (C.D. Cal. Jan. 16, 2020) (quoting Hernandez v. 21 | City of El Monte,

(9th Cir. 1998) (internal citations omitted) 22 | (citing Ferdik,

)). In a case involving sua sponte dismissal, 23 | however, the fifth Henderson factor regarding the availability of less drastic 24 | sanctions warrants special focus. Hernandez,

. 25 B. Failure to Update Court Regarding Address Change 26 Local Rule of Civil Procedure for the United States District Court for the 27 | Central District of California (“Local Rule”) 41-6 requires a pro se party to keep the 28 | Court and opposing parties apprised of the party’s current address, telephone

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1 number, and e-mail address, if any. If mail directed by the Clerk to a pro se 2 plaintiff’s address of record is returned undelivered by the Postal Service, and if, 3 within fifteen days of the service date, such plaintiff fails to notify, in writing, the 4 Court and opposing parties of plaintiff’s current address, the Court may dismiss the 5 action with or without prejudice for want of prosecution. 6 III. DISCUSSION 7 Here, the first two factors—public interest in expeditious resolution of 8 litigation and the Court’s need to manage its docket—weigh in favor of dismissal. 9 Despite being instructed to respond to the OSC by filing a motion for the entry of 10 default judgment, Plaintiff has failed to do so. Plaintiff has also failed to respond to 11 or attempt to move forward the litigation in any way. Plaintiff’s failure to prosecute 12 and follow Court orders hinders the Court’s ability to move this case toward 13 disposition and suggests that Plaintiff does not intend to litigate this action 14 diligently. 15 The third factor—prejudice to Defendant—also weighs in favor of dismissal. 16 A rebuttable presumption of prejudice to a defendant arises when a plaintiff 17 unreasonably delays prosecuting an action. See In re Eisen,

, 1452-53 18 (9th Cir. 1994) (citations omitted). Nothing suggests such a presumption is 19 unwarranted in this case, considering that Plaintiff has failed to comply with the 20 Court’s OSC and Plaintiff has not offered any excuse for his failure to comply with 21 the OSC and respond in a timely manner. Thus, this “prejudice” element thus favors 22 dismissal. 23 The fourth factor—public policy in favor of deciding cases on the merits— 24 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to move 25 litigation towards disposition at a reasonable pace and to avoid dilatory and evasive 26 tactics. See Morris v. Morgan Stanley,

(9th Cir. 1991). Plaintiff 27 has not met this responsibility despite having been: (1) instructed on his 28 responsibilities; (2) granted sufficient time in which to discharge them; and 4 Case 2:21-cv-06256-RGK-SHK Document 19 Filed 02/17/22 Page 5 of 6 Page ID #:45

1 (3) warned of the consequences of failure to do so. Under these circumstances, 2 though this policy favors Plaintiff, it does not outweigh Plaintiff’s repeated failure to 3 obey Court orders or to file responsive documents within the time granted. 4 The fifth factor—availability of less drastic sanctions—also weighs in favor 5 of dismissal. The Court cannot move the case toward disposition without Plaintiff’s 6 compliance with Court orders or participation in this litigation. Despite the Court’s 7 attempt to obtain a response, Plaintiff has shown he is either unwilling or unable to 8 comply with Court orders by failing to file responsive documents and failing to 9 otherwise cooperate in prosecuting this action. The Court is not aware of any lesser 10 sanction that is available in this case. See Henderson,

(“The 11 district court need not exhaust every sanction short of dismissal before finally 12 dismissing a case but must explore possible and meaningful alternatives.”) (citation 13 omitted); Roman v. Smith, No. 2:18-07909 PA (ADS),

, at *1 14 (C.D. Cal. Nov. 18, 2019). 15 Furthermore, based on the recent returned mailing of the OSC, the Court 16 concludes that Plaintiff failed to properly inform the Court of his updated address, in 17 violation of Local Rule 41-6. See ECF No. 18, Returned Mail. The OSC was 18 mailed to Plaintiff’s address on record on December 16, 2021. Therefore, to comply 19 with Local Rule 41-6, Plaintiff had fifteen days from that date, or until December 20 31, 2021, to update the Court of Plaintiff’s current address. However, to date, the 21 Court has received no such notification. 22 Accordingly, because Plaintiff has both failed to prosecute the matter and 23 failed to properly inform the Court of his updated address, the Court finds that 24 dismissal of this action, without prejudice, is appropriate here. 25 / / / 26 / / / 27 / / / 28 / / / 5 Case □□□□□□□□□□□□□□□□□□□□□□ Document 19 Filed 02/17/22 PageGof6 Page ID #:46

1 IV. CONCLUSION 2 For the reasons discussed above, IT IS HEREBY ORDERED that the case 3 | is DISMISSED without prejudice. 5 | Dated: February 17, 2022 □□ Caen 6 United States Disirict hudge 8 | Presented by: 10 Wes 11 | HONORABLE SHASHI H. KEWALRAMANI D United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28