Peggy Robinson v. Derrick John Toole
Filing
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ORDER DISMISSING CASE FOR LACK OF PROSECUTION 9 by Judge Otis D. Wright, II: the action is DISMISSED WITHOUT PREJUDICE for failure to prosecute and failure to comply with court rules and orders.Case Terminated. Made JS-6. (jre)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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PEGGY ROBINSON,
v.
Plaintiff,
Case No. 2:13-cv-5111-ODW(RZx)
ORDER DISMISSING CASE FOR
LACK OF PROSECUTION
DERRICK JOHN TOOLE,
Defendant.
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On August 7, 2013, the Court issued its Order to Show Cause why this case
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should not be dismissed for failure to prosecute. (ECF No. 9.) Based on Plaintiff
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Peggy Robinson’s Proof of Service, Defendant Derrick John Toole’s answer to the
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Complaint was due August 7, 2013. (ECF No. 8.) To date, Toole has not filed an
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answer in this case.
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But in response to the Order to Show Cause, instead of filing a request for entry
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of default or a statement of reasons demonstrating good cause for the failure to
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prosecute, Robinson filed a stipulation to extend time under Local Rule 8-3. This
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stipulation is not responsive to the Court’s Order to Show Cause.
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Federal courts are empowered to administer the “just, speedy, and inexpensive
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determination of every action and proceeding.” Fed. R. Civ. P. 1. With such a
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mandate, courts may dismiss an action for failure to prosecute or to comply with rules
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and orders under Federal Rule of Civil Procedure 41(b). See Pagtalunan v. Galaza,
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291 F.3d 639, 642–43 (9th Cir. 2002) (“In determining whether to dismiss a claim for
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failure to prosecute or failure to comply with a court order, the Court must weigh the
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following factors: (1) the public’s interest in expeditious resolution of litigation; (2)
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the court’s need to manage its docket; (3) the risk of prejudice to
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defendants/respondents; (4) the availability of less drastic alternatives; and (5) the
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public policy favoring disposition of cases on their merits.”); Yourish v. Cal.
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Amplifier, 191 F.3d 983, 989–92 (9th Cir. 1999) (explaining the factors supporting
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dismissal with prejudice for failure to prosecute).
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Not only is Robinson’s stipulation to extend time an improper response to the
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Order to Show Cause, the stipulation was improperly filed. Logic dictates that a Rule
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8-3 stipulation must be filed prior to the initial deadline to answer a complaint, not
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after. The Court concludes that the Pagtalunan factors weigh in favor of dismissal of
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this action.
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expeditious resolution of litigation and inhibits the Court’s ability to manage its
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docket. Yourish, 191 F.3d at 990 (“The public’s interest in expeditious resolution of
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litigation always favors dismissal.”). The Court also reasons that if Robinson is
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serious about prosecuting this case, she could simply refile it upon dismissal, thereby
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minimizing any prejudice against her.
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Robinson’s failure to engage in the litigation she initiated hampers
Accordingly, the action is DISMISSED WITHOUT PREJUDICE for failure
to prosecute and failure to comply with court rules and orders.
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IT IS SO ORDERED.
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August 14, 2013
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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE
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