1

2

3

4

5

6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8

9 EDNA MOLINA, individually, and as 1:23-cv-00724-EPG 10 successor-in-interest of the Estate of Lorenzo Molina, et al., 11 ORDER TO DISMISS THIS ACTION Plaintiffs, 12 WITHOUT PREJUDICE FOR FAILURE TO v. PROSECUTE AND FAILURE TO COMPLY 13 WITH COURT’S ORDERS COUNTY OF TULARE, et al., 14 Defendants. (ECF No. 40) 15

16

17 Plaintiffs Edna Molina, Ashley Molina, Lorenzo Molina, Sr., and Maria Molina proceed 18 on state and federal claims related to the death of their family member, Lorenzo Molina, Jr. 19 (ECF Nos. 1, 12). The parties have consented to the jurisdiction of the undersigned “for all 20 further proceedings in this action, including trial and entry of judgment.” (ECF No. 21). 21 On March 8, 2024, counsel for Plaintiffs filed a motion to withdraw. (ECF No. 37). On 22 May 1, 2024, the Court granted the motion. (ECF No. 40). On August 19, 2024, Defendants 23 filed a brief regarding whether Plaintiffs, now proceeding pro se, could pursue their claims 24 without counsel. (ECF No. 41). For reasons stated below, the Court orders that this case be 25 dismissed without prejudice for failure to prosecute and failure to comply with a court order. 1 26 27 28 1 Because the Court finds dismissal is warranted on these grounds, the Court does not address the remaining arguments in Defendants’ brief. 1 I. BACKGROUND 2 Plaintiff originally commenced this action in the Superior Court of California, County 3 of Tulare, on or about April 26, 2023. (ECF No. 1 at 1-2).2 The action was later removed to 4 federal court on May 10, 2023. (Id. at 3). 5 On or about June 12, 2023, Carrillo Law Firm, LLP substituted in as counsel of record 6 for Plaintiffs. (ECF Nos. 10, 11). Thereafter, Plaintiffs filed a First Amended Complaint and 7 Defendants filed an answer. (ECF Nos. 12, 23). After starting discovery, Plaintiffs’ counsel 8 filed a motion to withdraw, citing “a material breakdown in the attorney-client relationship.” 9 (ECF No. 37 at ECF p. 5). After holding a hearing, at which there were no objections, the Court 10 granted the motion on May 1, 2024. (ECF Nos. 39, 40 at 1). The Court advised Plaintiffs that, 11 given the nature of their claims, they may not be able to assert them without representation of 12 counsel. (ECF No. 40 at 2). Plaintiffs stated that they intended to retain new counsel and 13 requested ninety (90) days in which to do so. (Id.). The Court directed Plaintiffs to file a notice 14 regarding whether they had new counsel and if they planned to go forward with their claims by 15 no later than July 19, 2024. (Id. at 2-3). Plaintiffs were advised that if they did not have counsel 16 by this date, Defendants would file a brief regarding whether the case should proceed, and the 17 case may be dismissed. (Id.). The Court ordered the case stayed, pending notice from Plaintiffs. 18 (Id. at 3). 19 The deadline for Plaintiffs to file a notice that they have retained new counsel and if 20 they plan to proceed with their claims has passed, with no filing made. On August 19, 2024, 21 Defendants filed a brief regarding whether Plaintiffs, now proceeding pro se, may pursue their 22 claims. (ECF No. 41). 23 II. LEGAL STANDARDS 24 Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action for failure 25 to comply with court orders and to prosecute. In determining whether to dismiss an action 26 under Rule 41(b) for failure to prosecute or failure to comply with a Court order, “the Court 27 28 2 Unless otherwise indicated, page citations refer to the pagination appearing at the bottom of each page. Citations to the page numbers generated by the CM/ECF system will be preceded by “ECF p.” 1 must weigh the following factors: (1) the public’s interest in expeditious resolution of 2 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 3 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy 4 favoring disposition of cases on their merits.” Pagtalunan v. Galaza,

(9th 5 Cir. 2002) (citing Ferdik v. Bonzelet,

, 1260–61 (9th Cir. 1992)). 6 III. ANALYSIS 7 In applying the Pagtalunan factors to this case, the first factor weighs in favor of 8 dismissal, because “[t]he public’s interest in expeditious resolution of litigation always favors 9 dismissal.”

(quoting Yourish v. California Amplifier,

(9th Cir. 1999) 10 (internal quotation marks omitted). 11 As to the second factor, the Court’s need to manage its docket, “[t]he trial judge is in 12 the best position to determine whether the delay in a particular case interferes with docket 13 management and the public interest.”

Here, Plaintiffs failed to respond to the Court’s order 14 requiring a written notice they have retained new counsel and wish to proceed with their 15 claims. Allowing this case to proceed further without any indication that Plaintiffs intend to 16 prosecute this case is a waste of judicial resources. See Hall v. San Joaquin County Jail, No. 17 2:13-cv-0324 AC P,

, at *2 (E.D. Cal. Sept. 12, 2018) (“The court will not 18 continue to drag out these proceedings when it appears that plaintiffs have no intention of 19 diligently pursuing this case.”). Therefore, the second factor weighs in favor of dismissal. 20 Turning to the third Pagtalunan factor, risk of prejudice to Defendants, “pendency of a 21 lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal.” Pagtalunan, 291 22 F.3d at 642 (citing Yourish,

). However, “delay inherently increases the risk that 23 witnesses’ memories will fade and evidence will become stale,” Id. at 643, and it is Plaintiffs’ 24 failure to comply with a court order that is causing delay and preventing this case from 25 progressing. Therefore, the third factor weighs in favor of dismissal. 26 As for the availability of lesser sanctions, the fourth Pagtalunan factor, at this stage in 27 the proceedings there is little available to the Court which would constitute a satisfactory lesser 28 sanction while protecting the Court from further unnecessary expenditure of its scarce 1 || resources. Considering Plaintiffs have not appeared in this case since the hearing on the motion 2 || to withdraw over five months ago, the Court has little assurance that issuing monetary 3 || sanctions would not require ongoing Court supervision. And, given the stage of these 4 || proceedings, the preclusion of evidence or witnesses is not available. Moreover, dismissal 5 || without prejudice is the lesser sanction available to the Court. Under Federal Rule of Civil 6 || Procedure 41(b), a court may dismiss an action with prejudice for failure to comply with court 7 || orders and to prosecute. Fed. R. Civ. P. (41)(b); see also Link v. Wabash R. Co.,

, 8 || 630-31 (1962) (holding that Rule 41(b) allows sua sponte dismissal by the Court because 9 || authority of a court to dismiss sua sponte for lack of prosecution has generally been 10 || considered an ‘inherent power,’ governed not by rule or statute but by the control necessarily 11 |] vested in courts to manage their own affairs so as to achieve the orderly and expeditious 12 || disposition of cases.”) Therefore, the fourth factor also weighs in favor of dismissal. 13 Finally, because public policy favors disposition on the merits, this factor weighs 14 || against dismissal. Pagtalunan,

. 15 CONCLUSION AND ORDER 16 After weighing the factors, the Court finds that dismissal without prejudice is 17 || appropriate. 18 Accordingly, it is ORDERED that: 19 1. This action be dismissed without prejudice under Federal Rule of Civil 20 Procedure 41(b) for failure to prosecute and failure to follow Court’s orders; and 21 2. The Clerk of Court be directed to close this case. 22 3 IT IS SO ORDERED. 24 ll Dated: _ October 16, 2024 [sf hey □□ 25 UNITED STATES MAGISTRATE JUDGE 26 27 28