2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 JUSTIN EDMISTON, Case No. 3:21-cv-00245-MMD-CSD

7 Plaintiff, ORDER v. 8

9 RICARDO SAUCEDO, et al.,

10 Defendants.

11 12 Pro se Plaintiff Justin Edmiston, who is incarcerated at High Desert State Prison, 13 brings this action under

. (ECF No. 38.) The Court ordered Edmiston to 14 show cause as to why the Court should not dismiss this case for failure to comply with its 15 order (ECF No. 108) to attend the mandatory pretrial telephonic status conference set on 16 August 4, 2023. (ECF No. 111 (“Order”).) At that status conference, counsel for 17 Defendants informed the Court that the Nevada Department of Corrections warden had 18 advised that Plaintiff refused to leave his cell to participate. (Id.) The Court vacated the 19 trial scheduled to begin on August 15, 2023 and issued the show cause order. (Id.) The 20 Court held a show cause hearing on November 6, 2023, after briefing by the parties.1 21 (ECF No. 132.) The Court finds that Edmiston has satisfied the Court’s Order. 22 Accordingly, the Court will allow Plaintiff to proceed and will reset this case for trial. 23 Plaintiff is advised, however, that the case will be dismissed with prejudice if he fails to 24 comply with future orders. 25 /// 26 27 1The Court has reviewed Plaintiff’s responses to the show cause order (ECF Nos. 28 125, 127), Defendants’ response (ECF No. 130), and Plaintiff’s reply (ECF No. 131). In none of his filings does Plaintiff directly address his failure to appear at the video 2 determining whether to dismiss a case for failure to comply with court orders. In re 3 Phenylpropanolamine (PPA) Prods. Liab. Litig.,

(9th Cir. 2006). 4 These factors include (1) the public's interest in expeditious resolution of litigation; (2) the 5 court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the 6 availability of less drastic sanctions; and (5) the public policy favoring disposition of cases 7 on their merits.

The test is not mechanical and the list of factors is non-exhaustive. 8 Valley Eng'rs v. Elec. Eng'g Co.,

(9th Cir. 1998). 9 Here, the Court finds that public policy favoring disposition of cases on their merits 10 weighs strongly against dismissal and outweighs other factors. See Pagtalunan v. 11 Galaza,

(9th Cir. 2002). Plaintiff will not have another opportunity to 12 litigate his claims on their merits and has provided a colorable explanation for his failure 13 to appear. Most importantly, he indicated at the show cause hearing that he believed he 14 did not have to attend the August 4 status conference because an officer told him 15 attendance was not mandatory when he asked directly for clarification. (ECF No. 132.) 16 While the several-month delay may produce minor prejudice to Defendants, this concern 17 is mitigated here because Plaintiff’s failure to comply occurred close to trial after parties 18 engaged in discovery. 19 The Court agrees with Defendants that the first two factors—the public’s interest 20 in expeditious resolution and the Court’s need to manage its docket—weigh in favor of 21 dismissal, given the importance of compliance by all parties in litigation. (ECF No. 130 at 22 2.) While dismissal is a drastic sanction and the Court declines to apply it here, Plaintiff 23 must comply fully with court orders, including orders to appear, through the rest of this 24 litigation. Plaintiff is advised that failure to do so will result in dismissal with prejudice, 25 given the history of delay. 26 It is therefore ordered that the Court’s order to show cause (ECF No. 111) is 27 satisfied. 28 It is further ordered that the Court will reset this case for trial in a separate order. 1 DATED THIS 17" Day of November 2023.

3 MIRANDA M. DU 4 CHIEF UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28