1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BERKELEY HOMELESS UNION, Case No. 25-cv-04449-HSG

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

10 CITY OF BERKELEY, et al., 11 Defendants.

12 13 Despite multiple warnings, Plaintiff Berkeley Homeless Union has repeatedly failed to 14 comply with the Court’s orders. For the reasons set forth below, this action is DISMISSED 15 WITHOUT PREJUDICE for failure to prosecute. 16 I. BACKGROUND 17 Plaintiff filed a complaint against the City of Berkeley and several individual defendants 18 (collectively, “Defendants”) in May 2025, seeking a temporary restraining order and preliminary 19 injunction of Defendants’ efforts to relocate an unhoused encampment at Ohlone Park. See Dkt. 20 No. 1 at 3. The Court denied Plaintiff’s motions for a temporary restraining order and a 21 preliminary injunction. See Dkt. No. 8 (denying TRO); Dkt. No. 18 (denying preliminary 22 injunction).1 23 The Court then directed Plaintiff to serve the summons and complaint on Defendants by 24 July 11, 2025, and to file a brief discussing whether Plaintiff was entitled to a jury trial. Dkt. No. 25 21. Plaintiff had not submitted proof of service of Defendants by August 1, so the Court directed 26 Plaintiff to submit a certificate of service by August 5 and scrupulously comply with all future 27 1 deadlines. Dkt. No. 24. Plaintiff never complied with the Court’s order to brief the jury trial 2 issue. 3 Defendant filed a motion to dismiss. See Dkt. No. 25. After Plaintiff failed to timely 4 oppose or otherwise respond to the motion, the Court ordered Plaintiff to show cause why the case 5 should not be dismissed for failure to prosecute. See Dkt. No 30. Plaintiff timely responded to the 6 order to show cause, stating, in effect, that it was understaffed and busy with other ongoing 7 disputes with the City of Berkeley. See Dkt. No. 32. Plaintiff requested additional time to file an 8 opposition. Id. The Court granted Plaintiff an additional week to file an opposition and reminded 9 the Plaintiff that a busy schedule did not excuse a lack of diligence in a case that Plaintiff chose to 10 bring. See Dkt. No. 34. The Court warned Plaintiff that failure to meet the extended deadline 11 would likely result in dismissal for failure to prosecute without additional notice. Id. Despite this 12 warning, Plaintiff did not file a response by the deadline. 13 II. DISCUSSION 14 The district court may dismiss a case for failure to prosecute or for failure to comply with a 15 court order. See Fed. R. Civ. P. 41(b). “The authority of a court to dismiss sua sponte for lack of 16 prosecution has generally been considered an ‘inherent power,’ governed not by rule or statute but 17 by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly 18 and expeditious disposition of cases.” Link v. Wabash R. Co.,

, 630–31 (1962). 19 “Despite this authority, dismissal is a harsh penalty and, therefore, it should only be imposed in 20 extreme circumstances.” Ferdik v. Bonzelet,

(9th Cir. 1992) (citations 21 omitted); see also Fed. R. Civ. P. 41(b) (stating that dismissal for failure to prosecute “operates as 22 an adjudication on the merits” unless the order says otherwise). 23 Courts “must weigh five factors” in determining whether to dismiss a case for failure to 24 prosecute: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 25 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 26 disposition of cases on their merits; and (5) the availability of less drastic alternatives.” See 27 Ferdik, 963 F.2d at 1260–61. Here, the Court finds that these factors weigh in favor of dismissal. 1 First, “[t]he public’s interest in expeditious resolution of litigation always favors 2 dismissal.” Pagtalunan v. Galaza,

(9th Cir. 2002) (quoting Yourish v. 3 California Amplifier,

, 990 (9th Cir. 1999)). That is true here. Plaintiff failed to file 4 an opposition to Defendants’ motion to dismiss and has repeatedly failed to meet court 5 deadlines. See Dkt. Nos. 24, 30, 34. The Court is satisfied that Plaintiff’s lack of responsiveness 6 contravenes the “public’s interest in expeditious resolution of litigation.” See id. This factor 7 therefore weighs in favor of dismissal. 8 Second, it is “incumbent” upon courts “to manage [their] docket without being subject to 9 routine noncompliance of litigants.” Pagtalunan,

(citing Ferdik,

1261). Moreover, “[t]he trial judge is in the best position to determine whether the delay in a 11 particular case interferes with docket management and the public interest.”

Here, Plaintiff has 12 demonstrated such “routine noncompliance” by failing to oppose the motion to dismiss and 13 comply with the Court’s orders by the deadlines set. This non-compliance has “consumed some 14 of the court’s time that could have been devoted to other cases on the docket.”

This factor also 15 weighs in favor of dismissal. 16 Third, to prove prejudice, “a defendant must establish that plaintiff’s actions impaired 17 defendant’s ability to proceed to trial or threatened to interfere with the rightful decision of the 18 case.”

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

(9th Cir. 1987)). “Whether 19 prejudice is sufficient to support an order of dismissal is in part judged with reference to the 20 strength of the plaintiff’s excuse for the default.” Malone,

(citation omitted). In 21 Malone, which involved a Rule 41(b) dismissal for failure to comply with a court order, the 22 district court found the plaintiff’s excuse for her failure to comply with the order to be 23 “groundless,” justifying dismissal.

And in Yourish, which also involved plaintiffs who failed 24 to obey a court order, the court concluded the defendants had suffered “sufficient prejudice” where 25 the plaintiffs had only a “paltry excuse” for why they failed to timely amend their complaint. 191 26 F.3d at 991–92. Here, Plaintiff has failed to oppose the motion to dismiss and obey the Court’s 27 orders, and its excuse for noncompliance—its purportedly busy schedule—was 1 Fourth, the Court has attempted to avail itself of less drastic alternatives that have proven 2 || ineffective in advancing the case. The Court warned Plaintiff to comply with future deadlines 3 after it failed to timely submit proof of service. See Dkt. No. 24. The Court then entered an order 4 || to show cause when Plaintiff failed to respond to the motion to dismiss, expressly warning 5 Plaintiff that its case was at risk of dismissal for failure to prosecute and giving it a week to 6 || respond. See Dkt. No. 30; Ferdik,

(holding that warning a party that his failure 7 || to obey the court’s order will result in dismissal can satisfy the “consideration of alternatives” 8 || requirement). And despite an unsatisfactory response, the Court then granted Plaintiff an 9 || additional week to file its opposition to Defendants’ motion to dismiss, explicitly warning Plaintiff 10 || that it would likely dismiss the case if Plaintiff missed the extended deadline. See Dkt. No. 34. 11 This factor therefore weighs in favor of dismissal. 12 Lastly, while “[pJublic policy favors disposition of cases on the merits,” such that “this 5 13 factor weighs against dismissal,” Plaintiff is not precluded from litigating these claims when it is 14 || prepared to do so in compliance with the Court’s orders. See Pagtalunan,

. 15 || II. CONCLUSION 16 Because four of the five factors weigh in favor of dismissal, the Court finds that dismissal 3 17 of Plaintiff's case for failure to prosecute is appropriate. The Court thus DISMISSES this case 18 || without prejudice to renewal under Fed. R. Civ. P. 41(b). This Order TERMINATES AS 19 || MOOT Defendants’ motion to dismiss, Dkt. No. 25. The Clerk shall enter judgment in favor of 20 || Defendants and close the case. 21 22 IT IS SO ORDERED. 23 Dated: September 15, 2025 24 Absiprrd 3, dep. 25 HAYWOOD S. GILLIAM, JR. United States District Judge 26 27 28