1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MADIABEL GUEYE, Case No. 3:22-cv-08904-JSC

8 Plaintiff, DISMISSAL ORDER v. 9

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

12 13 Madiabel Gueye, who is representing himself, brought suit against Wells Fargo Bank, N.A. 14 and Chris Potts (a Wells Fargo employee), alleging Defendants racially discriminated against him 15 in violation of

and intentionally inflicted emotional distress upon him. (Dkt. No. 16 1.)1 Defendants moved to dismiss the initial complaint, and the Court granted Defendants’ motion 17 to dismiss with leave to amend. (Dkt. No. 32.) After Mr. Gueye filed an amended complaint, 18 Defendants again moved to dismiss the complaint and the Court again granted the motion with 19 leave to amend. (Dkt. No. 45.) Mr. Gueye then filed a second amended complaint. (Dkt. No. 51.) 20 Defendants moved to dismiss the second amended complaint. (Dkt. No. 52.) Plaintiff did not file 21 an opposition by the deadline. Because Plaintiff was proceeding without an attorney, the Court 22 gave Plaintiff one additional week to file a response to Defendants’ motion to dismiss, and 23 “warn[ed] Plaintiff that failure to respond to this motion could result in his claim being 24 dismissed.” (Dkt. No. 55.) Plaintiff did not respond by the extended deadline. The Court ordered 25 Plaintiff to show cause why the case should not be dismissed for failure to prosecute and indicated 26 if Plaintiff failed to file a written response by July 24, 2024, the Court would dismiss the case with 27 1 prejudice for failure to prosecute. (Dkt. No. 57.) 2 As of August 1, 2024, Plaintiff has failed to respond to either the motion to dismiss or the 3 order to show cause. Nor has Plaintiff asked the Court to extend any deadlines or communicated 4 with the Court in any way. So, the Court DISMISSES the case WITH PREJUDICE for failure to 5 prosecute and failure to comply with the Court’s order to show cause. 6 Pursuant to Federal Rules of Civil Procedure 41(b), the Court may dismiss an action for 7 failure to prosecute or to comply with a court order. See Hells Canyon Pres. Council v. U.S. 8 Forest Serv.,

(9th Cir. 2005) (“[C]ourts may dismiss under Rule 41(b) sua 9 sponte, at least under certain circumstances.”). In determining whether a Rule 41(b) dismissal is 10 appropriate, the court must weigh the following factors: “(1) the public’s interest in expeditious 11 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 12 defendants; (4) the public policy favoring disposition of cases on their merits and (5) the 13 availability of less drastic sanctions.” Henderson v. Duncan,

, 1423 (9th Cir. 1986). 14 Dismissal is appropriate “where at least four factors support dismissal . . . or where at least three 15 factors strongly support dismissal.” Hernandez v. City of El Monte,

(9th Cir. 16 1998) (cleaned up). 17 Here, four of the five Henderson factors weigh in favor of dismissal. The first two 18 factors—the public interest in expeditious resolution of litigation and the Court’s need to manage 19 its docket—relate to the “efficient administration of judicial business for the benefit of all litigants 20 with cases pending.” Nealey v. Transportacion Maritima Mexicana, S.A.,

, 1279 21 (9th Cir. 1980). By failing to file a response or respond to the Court’s Order, Plaintiff has delayed 22 adjudication of this action. Non-compliance with the Court’s orders wastes “valuable time that 23 [the Court] could have devoted to other . . . criminal and civil cases on its docket.” Ferdik v. 24 Bonzelet,

(9th Cir. 1992). 25 As for the third factor, while “the pendency of the lawsuit is not sufficiently prejudicial 26 itself to warrant dismissal,” the delay caused by Plaintiff’s failure to prosecute this action despite 27 the Court’s order weighs in favor of dismissal. Yourish v. California Amplifier,

, 991 1 The fourth factor is the availability of less drastic sanctions. The Court already cautioned 2 || Plaintiff that failure to respond to the order to show cause would result in dismissal of the case. 3 Thus, the Court has fulfilled its “obligation to warn the plaintiff that dismissal is imminent.” 4 Oliva v. Sullivan,

(9th Cir. 1992); see also Ferdick,

(“A 5 district court’s warning to a party that failure to obey the court’s order will result in dismissal can 6 || satisfy the ‘consideration of [less drastic sanctions] requirement.” (quoting Malone v. U.S. Postal 7 Seryv.,

(9th Cir. 1987))). The fourth factor thus weighs in favor of dismissal. 8 The last factor, which favors disposition on the merits, by definition weighs against 9 || dismissal. Pagtalunan v. Galaza,

(9th Cir. 2002) (“Public policy favors 10 || disposition of cases on the merits. Thus, this factor weighs against dismissal.”). However, the 11 Court notes that were it to consider the merits, it would likely dismiss the case for failure to state a 12 || claim, for the same reasons stated in the Court’s previous dismissal. (Dkt. No. 45.) 13 In sum, four of the five relevant factors weigh strongly in favor of dismissing this action in 14 || its entirety. See Pagtalunan,

(affirming dismissal where three factors favored 3 15 dismissal, while two factors weighed against dismissal). The Court therefore DISMISSES this a 16 action with prejudice. IT IS SO ORDERED. || Datea: August 2, 2024 19

IACQPDELINE SCOTT CORLE 21 nited States District Judge 22 23 24 25 26 27 28