1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANDRE LOWE, Case No.: 3:22-cv-1099-JES-KSC

12 Plaintiff, ORDER DISMISSING CASE FOR 13 v. LACK OF PROSECUTION 14 NATIONAL CREDIT ADJUSTERS, LLC, 15 Defendant. 16

17 On March 13, 2023, Plaintiff and counsel appeared at the Early Neutral Evaluation 18 Hearing (ENE) when Plaintiff left abruptly in the middle of the hearing without warning. 19 The Court issued an OSC for why sanctions should not be imposed and set a hearing for 20 April 19, 2023. Plaintiff did not appear at the hearing and the Court reserved ruling on 21 sanctions against Plaintiff. Plaintiff’s counsel then asked to withdraw from the case 22 because Plaintiff fired him and refused to return any messages. Plaintiff’s counsel was 23 allowed to withdraw from the case on April 21, 2023, and Plaintiff was ordered to appear 24 in court on May 19, 2023, to inform the court whether he wanted to proceed with new 25 counsel or pro se. Plaintiff did not appear or respond in any manner. On May 19, 2023, 26 the Court ordered Plaintiff to show cause on or before June 9, 2023, why the case should 27 not be dismissed for lack of prosecution. ECF No 31. The Court cautioned that failure to 28 1 timely respond to the Order to Show Cause (OSC) would result in dismissal of the action. 2 Id. To date, Plaintiff has not filed a response. 3 Federal Rule of Civil Procedure 41(b) governs involuntary dismissal. Fed. R. Civ.

(b). Before dismissing under Rule 41(b), a district court must weigh five “essential 5 factors”: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 6 need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 7 policy favoring disposition of cases on their merits and (5) the availability of less drastic 8 sanctions.” Henderson v. Duncan,

(9th Cir. 1986). “A 9 dismissal for lack of prosecution must be supported by a showing of unreasonable delay,” 10 which “creates a presumption of injury to the defense.”

(citations omitted). 11 The Court examines the five “essential factors” set forth in Henderson and finds 12 that they weigh in favor of dismissing the case. Plaintiff has unreasonably delayed this 13 case by leaving the ENE and failing to respond to both his previous counsel and the 14 Court’s order to show cause. The Court gave Plaintiff multiple opportunities to continue 15 with the prosecution of this case, but Plaintiff has not responded at all. Based on these 16 facts, the Court finds that the public’s interest in speedy litigation and the Court’s need to 17 manage its docket weigh in favor of dismissal. The Court also finds that prejudice to 18 Defendant can be presumed from the length of this delay. Moreover, by not responding to 19 the Court’s Order to Show Cause, Plaintiff has requested no alternative sanction nor 20 demonstrated a desire to prosecute this case. The Court, therefore, finds that dismissal is 21 the appropriate sanction in this case. 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / l Accordingly, the Court DISMISSES the case pursuant to Federal Rule of Civil 2 || Procedure 41(b) with prejudice for failure to prosecute. The Clerk is directed to close the 3 || case. 4 IT IS SO ORDERED. 5 Dated: June 12, 2023 JU , 6 Jao San 4, 7 Honorable James E. Simmons, Ir. g Unites States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28