Mary Clement v. Hyrail Partners V LLC et al, No. 2:2008cv03454 - Document 8 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER DISMISSING COMPLAINT FOR FAILURE TO PROSECUTE by Judge Philip S. Gutierrez. (smi)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 WESTERN DIVISION 10 11 12 13 14 15 MARY CLEMENT, ) ) Plaintiff, ) ) v. ) ) HYRAIL PARTNERS V LLC., ET AL, ) ) Defendants. ) ) Case No. CV 08-3454-PSG (MLG) MEMORANDUM OPINION AND ORDER DISMISSING COMPLAINT FOR FAILURE TO PROSECUTE 16 17 This is a pro se civil rights action brought pursuant to 42 18 U.S.C. ยง 1983. The action was filed on May 27, 2008. Plaintiff paid 19 the full filing fee and is not proceeding in forma pauperis. In 20 accordance with the Court s May 28, 2008 Order, Plaintiff was 21 directed to personally serve the defendants with a summons and 22 complaint no later than September 24, 2008. Plaintiff was informed 23 that the failure to timely effect service would result in dismissal 24 of the action. On September 24, 2008, Plaintiff filed a motion to 25 extend the time to effect service. That motion was granted and 26 Plaintiff was given until October 17, 2008 in which to serve the 27 Defendants. No certificates or other indicia of service have been 28 filed as of November 5, 2008. 1 Pursuant to Federal Rule of Civil Procedure 4(m), if service of 2 the summons and complaint is not made within 120 days of the filing 3 of 4 prejudice unless good cause is shown to extend the time for service. 5 Plaintiff has not effected service in the time allowed despite being 6 given additional time in which to do so. And, she has not shown good 7 cause for the failure to timely effect service. the complaint, the court shall dismiss the matter without 8 The Court has the inherent power to achieve the orderly and 9 expeditious disposition of cases by dismissing actions for failure 10 to prosecute. 11 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). The Court 12 is required to weigh the following factors in determining whether to 13 dismiss a case for lack of prosecution: (1) the public s interest 14 in expeditious resolution of litigation; (2) the court s need to 15 manage its docket; (3) the risk of prejudice to the defendants; (4) 16 the public policy favoring disposition of cases on their merits; and 17 (5) the availability of less drastic sanctions. 18 at 1260, 1261; In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) 19 (citing Henderson, 779 F.2d at 1423); see also In re PPA Products 20 Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006); Pagtalunan 21 v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962); Ferdik, 963 F.2d 22 Here, the public s interest in the expeditious resolution of 23 litigation and the court s interest in managing its docket weighs in 24 favor of dismissal. Given Plaintiff s failure to comply with the 25 court s order, dismissal would not undermine the public policy 26 favoring disposition of cases on the merits. 27 no identifiable risk of prejudice to Defendants. Finally, four months 28 have elapsed without Plaintiff having 2 In addition, there is served any one of the 1 defendants. 2 perform this preliminary act. 3 4 5 She has failed to demonstrate good cause for failing to Balancing all of these factors, dismissal of this action without prejudice for failure to prosecute is warranted. IT IS SO ORDERED. 6 7 Dated: November 5, 2008 8 9 10 Philip S. Gutierrez United States District Judge 11 12 Presented By: 13 14 15 Marc L. Goldman United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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