Stone vs. Cate, et al.,
Filing
18
ORDER signed by Judge Garland E. Burrell, Jr on 05/10/10 GRANTING with prejudice 14 , 16 Motion to Dismiss. Plaintiff's alleged claims against Glenda Pressly; Matthew Cate and Nancy Hanley are DISMISSED with prejudice. (Williams, D)
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDITH STONE, 12 Plaintiff, 13 v. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pending is Defendants Matthew Cate, Glenda Pressly, and Nancy Hanley's unopposed motion to dismiss the claims alleged against them with prejudice under Federal Rule of Civil Procedure ("Rule") 41(b), for failure to prosecute or comply with a court order. referenced order issued on March 4, 2010, and granted these Defendants' motion to dismiss Plaintiff's claims alleged against them for failure to state a claim upon which relief can be granted under Rule 12(b)(6), and provided Plaintiff ten days leave to amend her complaint. Plaintiff failed to oppose these Defendants' Rule 12(b)(6) Nor has Plaintiff amended her complaint within the The MATTHEW CATE, GLENDA PRESSLY, NANCY HANLEY, and TAMMIE SCHEID, Defendants. ) ) ) ) ) ) ) ) ) ) ) 2:09-cv-02139-GEB-KJM ORDER
dismissal motion.
leave to amend period prescribed in the March 4, 2010 dismissal order. 1
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Plaintiff has also failed to oppose Defendants' Rule 41(b) dismissal motion. Nor has Plaintiff provided an explanation for her above
stated failures. Rule 41(b) prescribes: "If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action . . . . " Fed. R. Civ. P. 41(b).
In determining whether to dismiss a claim for failure to prosecute or failure to comply with a court order, the Court must weigh the following factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Here, the first and second factors (the public's interest in expeditious resolution of litigation and the court's need to manage its docket) weigh heavily in favor of dismissal because of Plaintiff's failure to oppose either the Rule 12(b)(6) or the Rule 41(b) dismissal motion, and her failure to amend her dismissed claims within the time period provided in the March 4, 2010 dismissal order. Plaintiff's
failure to timely amend her complaint against the movants has impaired the public's interest in expeditious resolution of litigation and undermines the court's ability to manage its docket. See Yourish
v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1990) ("the public's interest in expeditious resolution of litigation always favors dismissal."); Pagtalunan, 291 F.3d at 642 (stating that "[i]t is incumbent upon the Court to manage its docket without being subject to routine noncompliance of litigants").
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The third factor concerning the risk of prejudice to the defendants includes consideration of the strength of the plaintiff's excuse for non-compliance. See Pagtalunan, 291 F.3d at 642-43
(stating "[u]nnecessary delay inherently increases the risk that witnesses' memories will fade and evidence will become stale"). Ninth Circuit has "indicated that the risk of prejudice to the defendant is related to the plaintiff's reason for defaulting in failing to timely amend." Yourish, 191 F.3d at 991. Since Plaintiff The
has provided no excuse for her failure to amend the dismissed claims this "indicates that there [is] sufficient prejudice to Defendants
from the delay that this factor also . . . favors dismissal." Yourish, 191 F.3d at 992; see also Ross v. Woodland Joint Unified Sch. Dist., No. 2:07-cv-01668-MCE-JFM, 2008 WL 3367589, at *2 (E.D. Cal. Aug. 8, 2008) (finding "this factor weighs strongly in favor of dismissal" when "Plaintiff was notified that he had twenty days to amend his complaint, but has not filed an amended complaint, nor put forth a reason for his failure to comply with the Court's Order"). The fourth factor concerning the availability of less drastic alternatives also weighs in favor of dismissal since Plaintiff has failed to oppose Defendants' Rule 41(b) dismissal motion. This
motion warns Plaintiff that her claims against the movants could be dismissed with prejudice; this warning is sufficient here to "meet the `consideration of alternatives' requirement." In re
Phenylpropanolamine (PPA) Products Liab. Litig., 460 F.3d 1217, 1229 (9th Cir. 2006) (cite omitted). favor of dismissal. The fifth factor concerns the public policy favoring Accordingly, this factor weighs in
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disposition of cases on their merits. dismissal.
This factor weighs against
Pagtalunan, 291 F.3d at 643, (stating "[p]ublic policy
favors disposition of cases on the merits"). However, the balance of all factors favors dismissal. Therefore Defendants' Rule 41(b) dismissal motion is GRANTED and Plaintiff's claims alleged against Defendants Matthew Cate, Glenda Pressly, and Nancy Hanley are dismissed with prejudice. Plaintiff's claims against Defendant Tammy Scheid remain. Dated: May 10, 2010 Only
GARLAND E. BURRELL, JR. United States District Judge
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