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8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

10 173D AIRBORNE BRIGADE ) NO. CV 23-10076-KS 11 ASSOCIATION, )

12 Plaintiff, ) MEMORANDUM OPINION AND ORDER ) 13 v. ) 14 ) CALEB GELLER, et al., ) 15 ) Defendants. 16 _________________________________ )

17 18 BACKGROUND 19 20 On November 30, 2023, Plaintiff 173D Airborne Brigade Association filed a 21 Complaint against Defendants Caleb Geller, Michael Geller, and 100 Doe defendants 22 (collectively “Defendants”) alleging breach of fiduciary duty, intentional misrepresentation 23 (fraud), conversion, and money had and received. (Dkt. No. 1.) On April 3, 2024, 24 Defendants Caleb Geller and Michael Geller filed an Answer to the Complaint denying the 25 allegations in the Complaint and alleging affirmative defenses. (Dkt. No. 23.) On April 19, 26 2024, then presiding District Judge Snyder dismissed Doe defendants 11-100 because the 27 inclusion of those 89 additional Doe defendants violated Local Rule 19-1, which prohibits a 28 Complaint from including more than ten fictitiously named parties. (Dkt. No. 31.) 1 On June 27, 2024, the parties consented to the undersigned Chief Magistrate Judge for 2 all further proceedings. (Dkt. No. 38.) The Court subsequently held a scheduling conference 3 on September 3, 2024, at which the Court accepted the parties’ proposed case management 4 and trial dates as presented in the Joint Rule 26(f) Scheduling Report. (Dkt. Nos. 41, 41-1, 5 43, 43-1.) Pertinent here, the Court’s Scheduling Order provided that the last date for hearing 6 dispositive motions was June 3, 2025; contentions of fact and law, exhibit and witness lists, 7 and a status report regarding settlement were due on July 8, 2025; findings of fact and 8 conclusions of law as well as summaries of the planned direct testimony were due by August 9 5, 2025; the hearing on motions in limine was scheduled for August 12, 2025; the final 10 pretrial conference order was to be lodged, and proposed and disputed jury instructions and 11 verdict forms were to be filed, by August 15, 2025; trial briefs were due on August 19, 2025; 12 and trial, estimated to last 5-7 days, was scheduled to commence on August 26, 2025. (Dkt. 13 No. 43-1.) Neither party has submitted any of these required filings. 14 15 On September 26, 2024, Defendant Michael Geller filed a Notice of Bankruptcy 16 reflecting that he was in an active bankruptcy case before the United States Bankruptcy Court 17 for the District of Nevada, Case No. 24-14392. (Dkt. No. 44.) On September 30, 2024, the 18 Court concluded, in accordance with

, that this action was subject to an 19 automatic stay as to Defendant Michael Geller. (Dkt. No. 45.) The Court ordered that this 20 litigation would resume against Defendant Michael Geller only after the parties lodged a 21 notice that the bankruptcy proceedings in the District of Nevada had concluded. (Id.) The 22 Court further ordered that the “automatic stay applies ONLY TO DEFENDANT 23 MICHAEL GELLER” and that as to all other parties “this action continues and all dates and 24 deadlines remain in place, . . . .” (Id., emphasis in original.) 25 26 On January 13, 2025, attorney Taylor E. Darcy, counsel for Defendants Michael Geller 27 and Caleb Geller, filed a motion to withdraw as counsel of record for Defendant Caleb Geller. 28 (Dkt. No. 46.) The next day, on January 14, 2025, attorney Darcy filed a Request for 1 Approval of Substitution or Withdrawal of Counsel as to both Michael Geller and Caleb 2 Geller. (Dkt. No. 47.) On February 6, 2025, the Court granted counsel’s request as to 3 Defendant Caleb Geller only. (Dkt. No. 48.) Due to the automatic bankruptcy stay, the Court 4 did not rule on the request as it concerned Defendant Michael Geller and that as to Defendant 5 Michael Geller request remains pending. (Dkt. No. 47.) 6 7 On July 16, 2025, on its own motion, the Court rescheduled the final pretrial 8 conference from July 29, 2025, to August 5, 2025. (Dkt. No. 49.) 9 10 On August 5, 2025, counsel for both active parties (Plaintiff 173D Airborne Brigade 11 Association and Defendant Caleb Geller) failed to appear at the final pretrial conference. 12 (Dkt. No. 50.) Defendant Caleb Geller notified the Court via telephone that he would not 13 appear at the Final Pretrial Conference because he was hospitalized, but his was “the first and 14 only communication from any party regarding their non-appearance at the Final Pretrial 15 Conference.” (Id.) Additionally, as of August 5, 2025, the parties had “not complied with 16 any of the Court’s trial-related deadlines or communicated with the Court regarding the status 17 of this case.” (Id.) 18 19 Consequently, on the same date as the final pretrial conference, August 5, 2025, the 20 Court issued an Order to Show Cause re: the Failure to Prosecute (“OSC”). (Id.) 21 Specifically, the OSC ordered Plaintiff to show cause, on or before August 13, 2025, “why 22 the Court should not dismiss this matter for the failure to prosecute.” (Id.) The OSC advised 23 counsel for Plaintiff that Plaintiff “may discharge this Order by filing a statement signed 24 under penalty of perjury, of no more than five (5) pages, establishing good cause for the 25 failure to comply with the Court’s scheduling order and failure to communicate with the 26 Court regarding the status of this case.” (Id.) Plaintiff was also admonished, in bold letters, 27 that the “[f]ailure to timely comply with this Order will result in the issuance of an order of 28 1 dismissal with prejudice for failure to prosecute and to comply with Court orders pursuant to 2 Rule 41(b) of the Federal Rules of Civil Procedure.” (Id.) 3 4 On August 22, 2025, with no response from the OSC having been filed by Plaintiff, 5 the Court vacated the August 26, 2025 trial date. (Dkt. No. 51.) Now – more than two weeks 6 after the deadline to file a response to the OSC and two days after trial was set to commence 7 – Plaintiff has not responded to the OSC or had any communication with the Court. 8 9 DISCUSSION 10 11 It is well established that “district courts have inherent power to control their dockets 12 and may impose sanctions, including dismissal, in the exercise of that discretion.” Atchison, 13 Topeka and Santa Fe Ry. Co. v. Hercules Inc.,

, 1074 (9th Cir. 1998) 14 (emphasis in original; internal citation and quotation marks omitted). Further, Federal Rule 15 of Civil Procedure 41(b) grants federal district courts the authority to sua sponte dismiss 16 actions for the failure to prosecute and/or comply with court orders. Link v. Wabash R. Co., 17

(1962). In determining whether dismissal for lack of prosecution is 18 proper, a court must weigh several factors, including: (1) the public’s interest in expeditious 19 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 20 defendants; (4) the availability of less drastic sanctions; and (5) the public policy favoring 21 the disposition of cases on their merits. Pagtalunan v. Galaza,

(9th Cir. 22 2002); Ferdik v. Bonzelet,

(9th Cir. 1992). 23 24 In this case, the first two factors—public interest in expeditious resolution of litigation 25 and the need to manage the Court’s docket—weigh in favor of dismissal. As the Court 26 discussed above, both the deadline to respond to the OSC and for the commencement of trial 27 have passed and Plaintiff has had no contact with the Court – this despite the Court’s clear 28 warning that the failure to respond to the OSC “will result in the issuance of an order of 1 dismissal with prejudice for failure to prosecute and to comply with Court orders . . . .” 2 (Dkt. No. 50.) 3 4 However, even beyond these failures to act, there is also no indication in the record 5 that Plaintiff has complied with any dates and deadlines in the Court’s Scheduling Order. 6 Plaintiff filed no contentions of fact and law, no exhibit or witness lists, no status report 7 regarding settlement (or any indication that an attempt at settlement was made), no findings 8 of fact and conclusions of law, no summaries of the planned direct testimony, no motions in 9 limine, no final pretrial conference order, no proposed and disputed jury instructions, no 10 verdict forms, and no trial briefs despite the deadlines for all of those pretrial requirements 11 having passed. (Dkt. No. 43-1.) Indeed, counsel for Plaintiff has not filed anything or had 12 any contact with the Court since the September 3, 2024 Scheduling Conference 13 approximately one year ago. (Dkt. No. 43.) Plaintiff has neither proffered an explanation 14 for the failure to participate in any pretrial proceedings or comply with the Court’s 15 Scheduling Order, nor for failing to appear at the final pretrial conference or failing to 16 respond to the resulting OSC. Plaintiff’s inaction directly frustrates the public interest in 17 expeditious resolution of litigation and the need to manage the Court’s docket, and the first 18 two factors weigh heavily in favor of dismissal. Pagtalunan,

; Ferdik, 963 19 F.2d at 1260-61. 20 21 The third factor—risk of prejudice to Defendants—also weighs in favor of dismissal. 22 The Ninth Circuit has held that prejudice may be presumed from unreasonable delay. See In 23 re Eisen,

(9th Cir. 1994); Moore v. Teflon Commc’ns Corp.,

. This case has been on the Court’s docket since November 30, 2023, and 25 approximately one year has passed since Plaintiff made any contact with the Court 26 concerning this matter. (Dkt. No 43.) Additionally, in issuing the OSC, the Court afforded 27 Plaintiff notice and time to respond why this action should not be dismissed for the failure to 28 prosecute and warned Plaintiff in unequivocal language that the failure to timely respond to 1 the OSC would result in dismissal. (Dkt. No. 50.) Yet, Plaintiff has not responded to the 2 OSC. On these facts, the Court finds the delay in prosecuting this matter unreasonable and 3 presumes prejudice. Eisen,

; Moore,

. 4 5 Even the fourth factor—the availability of less drastic sanctions—does not weigh in 6 favor of retaining this action on the Court’s docket. The Court has attempted to avoid 7 outright dismissal by issuing an OSC for the specific purpose of affording Plaintiff time to 8 respond and argue against dismissal. (Dkt. No. 50.) Moreover, even before Plaintiff failed 9 to appear at the final pretrial conference, failed to respond to the Court’s OSC, and let the 10 trial date pass without any contact with the Court, Plaintiff also over the course of several 11 months ignored all of the deadlines in the Court’s Scheduling Order without any 12 communication with the Court. (Dkt. No. 43.) In particular, Plaintiff’s failure to respond to 13 the OSC despite the OSC providing clear notice that the case would be dismissed indicates 14 that Plaintiff abandoned this action, perhaps some time ago, and would not have responded 15 to threats of lesser sanctions. Thus, any alternatives to outright dismissal would not have 16 been effective. See Henderson v. Duncan,

(9th Cir. 1986) (“The 17 district court need not exhaust every sanction short of dismissal before finally dismissing a 18 case, but must explore possible and meaningful alternatives.”) (citation omitted). 19 20 The fifth factor—the general policy favoring resolution of cases on the merits—in 21 many cases would weigh against dismissal. Here, however, as outlined above, Plaintiff has 22 failed to meet any Court-ordered deadlines, failed to make any preparations for trial, failed to 23 appear at the final pretrial conference, and ignored the date set for the trial to commence. 24 Plaintiff’s conduct strongly indicates he “does not intend to or cannot litigate this action 25 diligently or comply with the Court’s instructions.” Loder v. Cty of Los Angeles, Case No. 26 21-8015-DMG (PDx),

, *1 (C.D. Cal. April 7, 2023) (dismissing action 27 without prejudice for lack of prosecution). Thus, it does not appear that the Court’s 28 retention of this action would increase the likelihood of any resolution on the merits. 1 Lastly, no party to this action has lodged a notice that Defendant Michael Geller’s 2 || bankruptcy proceedings in United States Bankruptcy Court for the District of Nevada, Case 3 || No. 24-14392, have concluded. Therefore, the automatic bankruptcy stay as to Michael 4 || Geller remains in place.

. However, the Court’s dismissal for the failure to 5 || prosecute is nevertheless appropriate as to this entire action because such a dismissal does 6 || not constitute a “continuation” of a judicial proceeding against Defendant Michael Geller, 7 || and does not, therefore, run afoul of

(a)(1). O’Donnell v. Vencor Inc., 466 8 || F.3d 1104, 1110 (th Cir. 2006). 9 10 CONCLUSION 11 12 For the foregoing reasons, this action is DISMISSED WITHOUT PREJUDICE for 13 || lack of prosecution and for the failure to comply with Court orders. Fed. R. Civ. P. 41(b); 14 || see also C.D. Cal. L.R. 41-1 (“Civil suits which have been pending for an unreasonable 15 || period of time without any action having been taken therein may, after notice, be dismissed 16 || for want of prosecution.”); C.D. Cal. L.R. 41-5 (“Ifa party, without notice to the Court, fails 17 || to appear at the noticed call of any action or proceeding, the matter is subject to dismissal for 18 || want of prosecution.”). Any pending motions are DENIED as moot and terminated. 19 20 IT IS SO ORDERED. 21 22 23 || DATE: August 28, 2025 24 7 Rnsensrn_ 25 KAREN L. STEVENSON 46 CHIEF U.S. MAGISTRATE JUDGE

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