1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CEDRIC ARMSTRONG-HARRIS, Case No. 21-cv-07637-HSG

8 Plaintiff, ORDER DISMISSING CASE WITH PREJUDICE 9 v.

10 WELLS FARGO BANK, N.A., et al., 11 Defendants.

12 13 On May 2, 2023, pro se Plaintiff Cedric Armstrong-Harris failed to appear at the case 14 management conference set by the Court in its order on Wells Fargo’s motion to dismiss. Plaintiff 15 did not file a case management statement as required, and Defendant represented that Plaintiff did 16 not respond to attempts to meet and confer. See Dkt. No. 44 at 1. Plaintiff has consistently missed 17 deadlines and failed to follow the Court’s instructions. For the reasons below, the Court 18 DISMISSES WITH PREJUDICE for failure to prosecute. 19 I. DISCUSSION 20 The district court may dismiss a case for failure to prosecute or for failure to comply with a 21 court order. See Fed. R. Civ. P. 41(b). “The authority of a court to dismiss sua sponte for lack of 22 prosecution has generally been considered an ‘inherent power,’ governed not by rule or statute but 23 by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly 24 and expeditious disposition of cases.” Link v. Wabash R. Co.,

, 630–31 (1962). 25 “Despite this authority, dismissal is a harsh penalty and, therefore, it should only be imposed in 26 extreme circumstances.” Ferdik v. Bonzelet,

(9th Cir. 1992) (citations 27 omitted); see also Fed. R. Civ. P. 41(b) (stating that dismissal for failure to prosecute “operates as 1 Courts must weigh five factors in determining whether to dismiss a case for failure to 2 prosecute: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 3 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 4 disposition of cases on their merits; and (5) the availability of less drastic alternatives.” See 5 Ferdik, 963 F.2d at 1260–61. A court need not make “explicit findings in order to show that it has 6 considered these factors,” although such findings are preferred.

. Here, the Court 7 considers each factor in turn, and finds that they weigh in favor of dismissal. 8 First, “[t]he public’s interest in expeditious resolution of litigation always favors 9 dismissal.” Pagtalunan v. Galaza,

(9th Cir. 2002) (quoting Yourish v. Cal. 10 Amplifier,

, 990 (9th Cir. 1999)). That is true here. Over the course of the case, the 11 Court has had to issue three separate orders to show cause why the case should not be dismissed 12 for failure to prosecute, resulting in repeated delays. See Dkt. No. 16 (vacating case management 13 conference); Dkt. No. 20; Dkt. No. 22 (continuing motion to dismiss hearing); Dkt. No. 36; see 14 also Dkt. No. 29 (order to show cause regarding service). The Court finds that Plaintiff’s ongoing 15 lack of responsiveness contravenes the “public’s interest in expeditious resolution of litigation.” 16 See Pagtalunan,

. This factor weighs in favor of dismissal. 17 Second, it is “incumbent” upon courts “to manage [their] docket[s] without being subject 18 to routine noncompliance” of litigants. See

(citing Ferdik,

). Moreover, “[t]he 19 trial judge is in the best position to determine whether the delay in a particular case interferes with 20 docket management and the public interest.”

Here, Plaintiff has demonstrated routine 21 noncompliance. Not only has Plaintiff repeatedly failed to meet deadlines or respond to 22 Defendant’s motions, but Plaintiff also has failed to follow the Court’s instructions in filings. See, 23 e.g., Dkt. No. 43 at 4–5 (noting Plaintiff added new claims and relied on nonresponsive cut-and- 24 pasted material in contravention of the Court’s orders). Plaintiff’s noncompliance “has consumed 25 some of the court’s time that could have been devoted to other cases on the docket.” See 26 Pagtalunan,

. This factor therefore weighs in favor of dismissal. 27 Third, in order to prove prejudice, “a defendant must establish that plaintiff’s actions 1 of the case.”

(citing Malone v. U.S. Postal Serv.,

(9th Cir. 1987)). 2 “Whether prejudice is sufficient to support an order of dismissal is in part judged with reference to 3 the strength of the plaintiff’s excuse for the default.” Malone,

(citation omitted). 4 In Malone, which involved a Rule 41(b) dismissal for failure to comply with a court order, the 5 district court found the plaintiff’s excuse for her failure to comply with a pretrial order to be 6 “groundless,” justifying dismissal.

And in Yourish, which also involved plaintiffs who failed 7 to obey a court order, the court concluded that the defendants had suffered “sufficient prejudice” 8 where the plaintiffs had only a “paltry excuse” for why they failed to timely amend their 9 complaint. 191 F.3d at 991–92. 10 Here, although Plaintiff’s initial excuse in January 2022 of having COVID-19 may have 11 warranted some delay, see Dkt. No. 17, Plaintiff’s excuses for subsequent failures to comply are 12 both “paltry” and “groundless.” After the Court’s second order to show cause, Plaintiff provided 13 no explanation and stated only “I . . . affirm my intensions to proceed . . . .” See Dkt. No. 21. In a 14 communication nearly seven months ago, before the Court issued its most recent dismissal order, 15 Plaintiff accused defense counsel of a conspiracy to get the case dismissed. See Dkt. No. 37. 16 There is no basis for this serious accusation, particularly given Plaintiff’s most recent failure to file 17 a case management statement or appear at the case management conference, notice of which was 18 served by first class mail to the address he provided to the Court. See Dkt. No. 43. Plaintiff has 19 admitted he previously received service by Defendant via mail. See Dkt. No. 28 ¶ 1 (“I did not 20 receive an instant email notification. Instead, my copy was sent via U.S. Mail which was not 21 actually reviewed until days later.”). And Plaintiff has not communicated with the Court, in any 22 capacity, since filing a document styled as a “formal request to meet and confer to facilitate a 23 mutually agreeable ADR process” nearly six months ago. Dkt. No. 41. This factor weighs in 24 favor of dismissal. 25 Fourth, the Court has attempted to use less drastic alternatives that have proven ineffective. 26 The Court has entered multiple orders to show cause, offered extensions, and expressly warned 27 Plaintiff that his case was at risk of dismissal for failure to prosecute. See Dkt. Nos. 16, 18, 20, 1 that he can register for e-filing. See Dkt. No. 43 at 5 n.3, 6. This factor thus weighs in favor of 2 || dismissal. See Ferdik,

(stating that Ninth Circuit authority “suggest[s] that a 3 district court’s warning to a party that his [or her] failure to obey the court’s order will result in 4 || dismissal can satisfy the ‘consideration of alternatives’ requirement”). 5 Last, because “[p]ublic policy favors disposition of cases on the merits . . . this factor 6 || weighs against dismissal.” See Pagtalunan,

. This is true here, where Plaintiff 7 would be precluded from litigating his claims due to his failure to prosecute. 8 Because four of the five factors weigh in favor of dismissal, the Court finds that dismissal 9 of Plaintiffs case for failure to prosecute 1s appropriate. 10 || IL | CONCLUSION 11 For the foregoing reasons, Plaintiff's action is DISMISSED WITH PREJUDICE. The 12 || Clerk is directed to enter judgment in Defendants’ favor and against Plaintiff and close the case. 13 IT IS SO ORDERED. 14 || Dated: May 4, 2023 ! □□ | | 15 : ‘ HAYWOOD S. GILLIAM, JR. = 16 United States District Judge

18 19 20 21 22 23 24 25 26 27 28