1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TIMOTHY B. GLASPER, Case No. 23-cv-04699-HSG

8 Plaintiff, ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE 9 v. Re: Dkt. No. 13 10 CITY OF OAKLAND, et al., 11 Defendants.

12 On September 20, 2023, Defendants City of Oakland, Oakland Public Works Department, 13 Richard Battersby, Tyree Jackson, and Arthur Watson (collectively, “Defendants”) moved to 14 dismiss the complaint filed by pro se Plaintiff Timothy Glasper. Dkt. No. 5. Plaintiff did not 15 respond to this motion by the October 4, 2023 deadline for filing an opposition. On October 12, 16 2023, the Court ordered Plaintiff to show cause why the case should not be dismissed for failure to 17 prosecute. Dkt. No. 13. Plaintiff did not respond to the Court’s order by the November 9, 2023 18 deadline (and has not responded to date). For the reasons set forth below, this action is 19 DISMISSED WITHOUT PREJUDICE for failure to prosecute. 20 I. BACKGROUND 21 On July 6, 2023, Plaintiff filed this case in Alameda County Superior Court, alleging 22 workplace harassment and retaliation by Defendants. Dkt. No. 1, Ex. A at 4. Plaintiff alleges that 23 beginning in 2015, his employer, the Public Works Department of Oakland, retaliated against him 24 for his participation in union activities. Id. Plaintiff alleged violations of

and 25 1983, Title VI, Title VII, and various California state statutes. 26 On September 13, 2023, Defendants removed the case to federal court. Dkt. No. 1. 27 Shortly thereafter, Defendants filed a motion to dismiss arguing that the complaint lacked 1 2023 deadline for Plaintiff to respond to Defendants’ motion, but he did not do so. Dkt. No. 5.1 2 On October 12, 2023, the Court ordered Plaintiff to show cause why Defendants’ motion to 3 dismiss should not be granted for failure to respond. Dkt. No. 13. Alternatively, the Court 4 directed Plaintiff to show cause why the case should not be dismissed for failure to prosecute.

5 The Court ordered Plaintiff to respond by November 9, 2023. Again, Plaintiff did not respond by 6 the deadline (or ever). Plaintiff also did not timely file a case management statement by the 7 December 12 deadline (while Defendants did). See Dkt. Nos. 11, 16. Other than filing a 8 declination to magistrate judge jurisdiction on September 27, 2023, Dkt. No. 8, Plaintiff has not 9 communicated with the Court in any way since the case was removed. 10 II. DISCUSSION 11 The district court may dismiss a case for failure to prosecute or for failure to comply with a 12 court order. See Fed. R. Civ. P. 41(b). “The authority of a court to dismiss sua sponte for lack of 13 prosecution has generally been considered an ‘inherent power,’ governed not by rule or statute but 14 by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly 15 and expeditious disposition of cases.” Link v. Wabash R. Co.,

(1962). 16 “Despite this authority, dismissal is a harsh penalty and, therefore, it should only be imposed in 17 extreme circumstances.” Ferdik v. Bonzelet,

(9th Cir. 1992) (citations 18 omitted); see also Fed. R. Civ. P. 41(b) (stating that dismissal for failure to prosecute “operates as 19 an adjudication on the merits” unless the order says otherwise). 20 Courts “must weigh five factors” in determining whether to dismiss a case for failure to 21 prosecute: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 22 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 23 disposition of cases on their merits; and (5) the availability of less drastic alternatives.” See 24 Ferdik,

. A court need not make “explicit findings in order to show that it has 25 considered these factors,” although such findings are preferred.

. Here, the Court 26

27 1 While the September 28, 2023 reassignment order vacated the hearing date on the motion, it 1 finds that these factors weigh in favor of dismissal. 2 First, “[t]he public’s interest in expeditious resolution of litigation always favors 3 dismissal.” Pagtalunan v. Galaza,

(9th Cir. 2002) (quoting Yourish v. Cal. 4 Amplifier,

, 990 (9th Cir. 1999)). That is true here. Plaintiff failed to respond to 5 Defendants’ motion. See Dkt. No. 5. Then, once the Court ordered Plaintiff to show cause why 6 the motion should not be granted, or in the alternative why the case should not be dismissed for 7 failure to prosecute, he again did not respond. Dkt. No. 13. Since the case was removed, beyond 8 timely filing a declination to magistrate judge jurisdiction, Plaintiff has not otherwise filed 9 anything, has not communicated with the Court for nearly four months, and has not complied with 10 multiple orders and rules. Plaintiff’s lack of responsiveness contravenes the “public’s interest in 11 expeditious resolution of litigation.” See Pagtalunan,

. This factor therefore 12 weighs in favor of dismissal. 13 Second, it is “incumbent” upon courts “to manage [their] docket[s] without being subject 14 to routine noncompliance” of litigants. See

(citing Ferdik,

). Moreover, “[t]he 15 trial judge is in the best position to determine whether the delay in a particular case interferes with 16 docket management and the public interest.”

Here, Plaintiff has demonstrated “routine 17 noncompliance”: he failed to respond to the motion to dismiss or the October 12 order to show 18 cause as detailed above, and did not file the required case management statement. Plaintiff’s 19 noncompliance “has consumed some of the court’s time that could have been devoted to other 20 cases on the docket.” See Pagtalunan,

. This factor therefore weighs in favor of 21 dismissal. 22 Third, in order to prove prejudice, “a defendant must establish that plaintiff’s actions 23 impaired defendant’s ability to proceed to trial or threatened to interfere with the rightful decision 24 of the case.”

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

(9th Cir. 1987)). 25 “Whether prejudice is sufficient to support an order of dismissal is in part judged with reference to 26 the strength of the plaintiff’s excuse for the default.”

(citation omitted). In Malone, which 27 involved a Rule 41(b) dismissal for failure to comply with a court order, the district court found 1 “groundless,” justifying dismissal. 7d. And in Yourish, which also involved plaintiffs who failed 2 || to obey a court order, the court concluded that the defendants had suffered “sufficient prejudice” 3 || where the plaintiffs had only a “paltry excuse” for why they failed to timely amend their 4 || complaint. 191 F.3d at 991-92. Here, Plaintiff has provided no reason for his noncompliance— 5 || rather, he has been entirely absent from the case other than submitting a single filing declining 6 || magistrate judge jurisdiction. This factor therefore weighs in favor of dismissal. 7 Fourth, the Court has attempted to employ less drastic alternatives that have proven 8 || ineffective in advancing the case. The Court issued an order to show cause, expressly warning 9 Plaintiff that his case was at risk of dismissal for failure to prosecute. See Dkt. No. 13. He failed 10 || torespond. This factor therefore weighs in favor of dismissal. See Ferdik,

11 (stating that Ninth Circuit authority “suggest[s] that a district court’s warning to a party that his [or 12 || her] failure to obey the court’s order will result in dismissal can satisfy the ‘consideration of 5 13 alternatives’ requirement”). 14 The last factor—the public policy favoring disposition on the merits—weighs against 15 dismissal here, as it always will even when a party entirely fails to prosecute. See Pagtalunan, a 16 ||

. 2 17 || 1. CONCLUSION Z 18 Having carefully considered all five factors, the Court concludes that dismissal for failure to 19 |] prosecute is appropriate. The Court thus DISMISSES this case under Fed. R. Civ. P. 41(b). The 20 || Clerk shall enter judgment in favor of Defendants and close the case. 21 IT IS SO ORDERED. 22 || Dated: 1/26/2024 23 Abeer 5 Mb HAYWOOD S. GILLIAM, JR. United States District Judge 25 26 27 28