1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TIMOTHY-ALLEN ALBERTSON, Case No. 23-cv-03998-AMO

8 Plaintiff, ORDER DISMISSING CASE FOR 9 v. FAILURE TO PROSECUTE

10 GOOGLE LLC, Defendant. 11

12 13 On February 7, 2024, the Court dismissed pro se Plaintiff Timothy-Allen Albertson’s 14 complaint with leave to amend by March 8, 2024. ECF 57. Albertson did not file an amended 15 complaint. On April 8, 2024, the Court issued an Order to Show Cause why the case should not 16 be dismissed for failure to prosecute. ECF 58. The Court directed Albertson to file a response by 17 April 22, 2024, or the Court would dismiss the case with prejudice. ECF 58. As of the date of this 18 order, Albertson has not filed a written response to the order to show cause or filed an amended 19 complaint. 20 Pursuant to Federal Rule of Civil Procedure 41(b), the Court may dismiss a case for failure 21 to prosecute. In determining whether to dismiss a case for failure to prosecute, the Court must 22 weigh five factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 23 need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability 24 of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” 25 Pagtalunan v. Galaza,

(9th Cir. 2002); see Ferdik v. Bonzelet,

, 26 1260-61 (9th Cir. 1992). Here, the Court finds that these factors weigh in favor of dismissal. 27 First, “[t]he public’s interest in expeditious resolution of litigation always favors 1 prosecute the case for more than three months, this factor weighs in favor of dismissal. See id.; 2 see, e.g., Glasper v. City of Oakland, No. 23-CV-04699-HSG,

, at *2 (N.D. Cal. 3 Jan. 26, 2024) (finding that this factor weighed in favor of dismissal where plaintiff had not 4 communicated with the Court in nearly four months or complied with multiple orders). 5 Second, “[i]t is incumbent upon the Court to manage its docket without being subject to 6 routine noncompliance of litigants[.]” Pagtalunan,

. Here, Albertson has 7 demonstrated “routine noncompliance,” as he failed to respond to the motion to dismiss or the 8 April 8 order to show cause. See

This factor therefore weighs in favor of dismissal. 9 Third, a defendant is prejudiced where a plaintiff’s actions “impaired defendant’s ability to 10 proceed to trial or threatened to interfere with the rightful decision of the case.” Pagtalunan, 291 11 F.3d at 642 (citing Malone v. U.S. Postal Serv.,

(9th Cir. 1987)). “Whether 12 prejudice is sufficient to support an order of dismissal is in part judged with reference to the 13 strength of the plaintiff’s excuse for the default.” Malone,

(citation omitted). In 14 Malone, which involved a Rule 41(b) dismissal for failure to comply with a court order, the 15 district court found the plaintiff’s excuse for her failure to comply with a pretrial order to be 16 “groundless,” justifying dismissal.

Here, Albertson has provided no reason for his 17 noncompliance and has been absent from his case since opposing Google’s motion to dismiss. 18 This factor also weighs in favor of dismissal. See Laurino v. Syringa Gen. Hosp.,

, 19 753 (9th Cir. 2002) (“[A] presumption of prejudice arises from a plaintiff’s unexplained failure to 20 prosecute . . .”). 21 Fourth, the Court attempted to employ less drastic alternatives that have proven 22 ineffective. The Court dismissed the complaint with leave to amend and Albertson failed to 23 respond or amend the complaint. ECF 57. The Court then issued an order to show cause, 24 expressly warning Albertson that the deadline to amend the complaint had passed and that failure 25 to respond to the order would lead to dismissal with prejudice. ECF 58. He again failed to 26 respond. Thus, this factor too weighs in favor of dismissal. See Ferdik,

(citation 27 omitted) (stating that Ninth Circuit authority “suggest[s] that a district court’s warning to a party 1 alternatives’ requirement”); Edwards v. Marin Park, Inc.,

(9th Cir. 2004) 2 (“The failure of the plaintiff eventually to respond to the court’s ultimatum—either by amending 3 the complaint or by indicating to the court that it will not do so—is properly met with the sanction 4 of a Rule 41(b) dismissal”); see also White v. Gonzales, No. 21-CV-04221-CRB(PR),

1659896, at *6 (N.D. Cal. Apr. 16, 2024) (finding that “[o]ne consideration pertinent in 6 || determining wither dismissal should be with or without prejudice is whether the court previously 7 warned plaintiff that failure to obey a court order would result in dismissal.”). 8 Finally, the last factor — the public policy favoring disposition on the merits — weighs 9 against dismissal here, as it always does when a party fails to prosecute. See Pagtalunan, 291 10 || F.3d at 643. 11 Having carefully considered all five factors, the court concludes that dismissal for failure 12 || to prosecute is appropriate. Accordingly, the Court DISMISSES this action WITH 13. || PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute. The 14 || Clerk is directed to enter final judgment against Plaintiff and close the file in this matter.

a 16 IT IS SO ORDERED.

17 Dated: June 12, 2024 Mod 19 coh ARACELI MARTINEZ-OLGUIN 20 United States District Judge 21 22 23 24 25 26 27 28