1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MERCED DOMINGUEZ, et al., Case No. 21-cv-08599-SI

8 Plaintiffs, ORDER DISMISSING PLAINTIFFS 9 v. RICHARD DORAN AND RONALD BANYASH WITHOUT PREJUDICE 10 CITY OF BERKELEY, et al., Re: Dkt. No. 74 11 Defendants.

12 13 On June 24, 2022, the Court held a hearing on defendants’ motion to dismiss without 14 prejudice plaintiffs Richard Doran and Ronal Banyash based on their failure to prosecute this case. 15 Neither Mr. Doran nor Mr. Banyash appeared at the hearing, nor did they file an opposition to the 16 motion. For the reasons set forth below, pursuant to Federal Rule of Civil Procedure 41(b), the 17 Court GRANTS the motion and DISMISSES the claims of plaintiffs Doran and Banyash without 18 prejudice. 19 20 BACKGROUND 21 On November 1, 2021, Richard Doran, Ronald Banyash, and eight other pro se plaintiffs 22 filed a complaint against the City of Berkeley. Compl. (Dkt. No. 1). The complaint alleges the 23 City’s newly enacted ordinances, “the Oversize Vehicle Overnight Ban, Gross Vehicle Weight 24 Limits and four-hour limit pilot parking program[,]” seek to punish the City’s vehicularly housed 25 residents. Id. at ¶ 1. The complaint asserts ten causes of action under the California and United 26 States Constitutions. Id. at ¶ 11. In addition, plaintiffs Dominguez, Zajac, Manlove, Galtney, and 27 Banyash brought four other causes of action under state and federal statutes based on their status as 1 On November 4, 2021, all plaintiffs joined in filing a Motion for a Temporary Restraining 2 Order (TRO). Dkt. No. 11. On March 16, 2022, this Court referred the matter to Magistrate Judge 3 Donna Ryu for settlement. Order of Reference (Dkt. No. 62). Plaintiffs Richard Doran and Ronald 4 Banyash did not appear for the hearing on the TRO motion which occurred on March 18, 2022. 5 Minute Entry for Proceedings (Dkt. No. 63). At that hearing, Magistrate Judge Ryu notified the 6 present plaintiffs of the procedure for the Settlement Conference and noted that it was a mandatory 7 court proceeding in which “[a]ll parties must participate[.]” Id. at 1. On March 22, 2022, Magistrate 8 Judge Ryu issued a Notice and Order to the parties regarding the Settlement Conference which 9 contained the following statement: “This is a mandatory proceeding and it will likely last the 10 whole day. All Plaintiffs must attend. Any Plaintiff who does not attend may jeopardize their 11 ability to continue to participate in the lawsuit.” Notice and Order of Settlement Conference 12 (Dkt. No. 65) (emphasis in original). 13 Plaintiffs Richard Doran and Ronald Banyash failed to appear at the initial Settlement 14 Conference on April 12, 2022. Minute Entry for Proceedings (Dkt. No. 70). Following the initial 15 conference, Magistrate Judge Ryu set the second conference for May 6, 2022, noting:

16 All Plaintiffs must attend. Any Plaintiff who does not attend may jeopardize 17 their ability to continue to participate in the lawsuit. Any Plaintiff who cannot attend the 5/6/2022 proceeding must notify Judge Ryu by no later than 5/4/2022 18 by sending an email to [email protected]. The email must explain why the Plaintiff cannot attend. 19 Id. at 1 (emphasis in original). Plaintiffs Richard Doran and Ronald Banyash also failed to appear 20 at the second Settlement Conference on May 6, 2022. Minute Entry for Proceedings (Dkt. No. 71). 21 During this conference, the proposed settlement terms were discussed and all parties had an 22 opportunity to ask questions. Id. at 1. 23 A third Settlement Conference was set for May 19, 2022, and the parties were again notified 24 that their attendance was mandatory. Id. (“This is a mandatory proceeding. All Plaintiffs must 25 attend. Any Plaintiff who does not attend may jeopardize their ability to continue to participate in 26 the lawsuit.”). Once again, plaintiffs Richard Doran and Ronald Banyash failed to appear at the 27 third Settlement Conference. Minute Entry for Proceedings (Dkt. No. 72). At this conference, 1 plaintiffs Dominguez, Zajac, Manlove, Benfante, Cheatwood, and Galtney reviewed and agreed to 2 the proposed settlement, and signed the term sheet. Id. at 1. The following day, Magistrate Judge 3 Ryu met with plaintiffs Fisher and Jeffords who reviewed and agreed to the proposed settlement and 4 signed the term sheet. Minute Entry for Proceedings (Dkt. No. 73). 5 On May 27, 2022, the City of Berkeley filed a motion pursuant to Federal Rule of Civil 6 Procedure 41(b) to dismiss plaintiffs Richard Doran and Ronald Banyash without prejudice. Dkt. 7 No. 74. Plaintiffs Doran and Banyash have not filed an opposition. 8 9 LEGAL STANDARD 10 “If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant 11 may move to dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). A court should 12 consider five factors before dismissing an action under Rule 41(b): (1) the public interest in the 13 expeditious resolution of the litigation: (2) the court's need to manage its docket; (3) the risk of 14 prejudice to the defendants; (4) the availability of less drastic sanctions; and (5) the public policy 15 favoring the disposition of actions on their merits. Henderson v. Duncan,

(9th 16 Cir. 1986). It should also afford the litigant prior notice of its intention to dismiss. Malone v. United 17 States Postal Serv.,

(9th Cir. 1987). Explicit findings on the five factors are not 18 required. Henderson,

. 19 A dismissal for failure to prosecute is generally with prejudice and operates as an 20 adjudication on the merits for purposes of preclusion. See Fed. R. Civ. P. 41(b); In re Schimmels, 21

, 884 (9th Cir. 1997). A district court may also specify that the dismissal is without 22 prejudice. See Fed. R. Civ. P. 41(b); Lyell Theatre Corp. v. Loew's Corp.,

, 42-43 (2d 23 Cir. 1982). But in either event, the dismissal of an action for failure to prosecute is final and 24 appealable, see Ash v. Cvetkov,

(9th Cir. 1984), cert. denied,

25 (1985), and subject to review for an abuse of discretion, see Franklin v. Murphy,

, 26 1232 (9th Cir. 1984). 27 1 DISCUSSION 2 In this case, an application of the five factors to plaintiffs Richard Doran and Ronald 3 Banyash weighs in favor of their dismissal without prejudice. Both parties failed to appear at three 4 settlement conferences after being notified by court order that their attendance was mandatory. In 5 addition, the parties were repeatedly warned of the potential consequences of failing to attend these 6 settlement conferences. Finally, Doran and Banyash are the only plaintiffs who have not agreed to 7 the proposed settlement, which includes terms of a time sensitive nature. 8 Public’s interest in expeditious resolution of litigation — This factor weighs in favor of 9 dismissal because the participating plaintiffs have agreed to a proposed settlement. However, the 10 settlement will not advance until this action is dismissed. See Declaration of Paul Buddenhagen at 11 ¶ 8 (Dkt. No. 76) (explaining the City Council will not hear the settlement unless it is assured that 12 the action will be dismissed). 13 Court’s need to manage its docket — This factor favors dismissal given Doran and 14 Banyash’s failure to appear at three settlement conferences and their lack of opposition to this 15 motion. Needlessly continuing to hold this matter on calendar impedes the Court’s need to manage 16 its docket. 17 Risk of prejudice to the defendants — This factor favors dismissal because the defendants 18 have reached a tentative settlement agreement with eight of the ten plaintiffs. Any further delay 19 would jeopardize the time sensitive terms of the settlement agreement which “can only be 20 considered and approved by the City Council in open public session.” Id. at ¶ 4. 21 Public policy favoring disposition of cases on their merits — While this policy goal would 22 generally not be served by dismissal, in this case, plaintiffs are dismissed without prejudice and are 23 free to litigate this matter on the merits in the future should they wish to do so. Accordingly, this 24 factor is neutral. 25 Availability of less drastic alternatives — This factor weighs in favor of dismissal because 26 Doran and Banyash were repeatedly placed on notice that their failure to attend the settlement 27 conferences could jeopardize their ability to continue in the lawsuit. The Ninth Circuit has held that 1 consideration of alternatives requirement.” Ferdik v. Bonzelet,

(9th Cir. 1992), 2 as amended (May 22, 1992) (internal quotation marks omitted). 3 Thus, these five factors considered in combination persuade the Court that dismissal for 4 || failure to prosecute is proper. However, the Court's dismissal will be without prejudice. 5 6 CONCLUSION 7 For the foregoing reasons and for good cause shown, the Court hereby GRANTS the motion 8 to dismiss plaintiffs Richard Doran and Ronald Banyash without prejudice. 9 10 IT IS SO ORDERED. 11 12 Dated: June 24, 2022 SUSAN ILLSTON 13 United States District Judge © 15 16

= 17

Z 18 19 20 21 22 23 24 25 26 27 28