The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
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7 MATTHEW MORRIS, Case No. 23-cv-04562-HSG
8 Plaintiff, ORDER DISMISSING CASE FOR
FAILURE TO PROSECUTE
9 v.
Re: Dkt. No. 21
10 BOARD OF TRUSTEES OF THE
CALIFORNIA STATE UNIVERSITY, et
11 al.,
12 Defendants.
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14 Pro se Plaintiff Matthew Morris failed to respond to CSU Defendants’ Motion to Dismiss,
15 Dkt. No. 6, or the Court’s Orders to Show Cause, Dkt. No. 23, 29. The Court DISMISSES
16 Plaintiff’s case WITHOUT PREJUDICE for failure to prosecute.
17 I. BACKGROUND
18 On March 13, 2023, Plaintiff filed this action in Alameda County Superior Court alleging
19 misconduct related to his experiences as a student and employee at the California State University,
20 East Bay. Dkt. No. 10 at 2. Plaintiff and the CSU Defendants “engaged in motion practice
21 regarding the Complaint,” which led the superior court to grant the CSU Defendants’ demurrer
22 with leave to amend.1 Id. On July 18, 2023, Plaintiff filed an amended complaint, adding “new
23 causes of action” and naming new defendants, “including federal defendants.” 2 Id. On August
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1 The “CSU Defendants” consist of: the Board of Trustees of the California State University,
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which is the State of California acting in its higher education capacity (“CSU”), CSUEB President
Cathy Sandeen, Terri LaBeaux, Mitch Watnik, Maureen Scharberg, Danvy Le, Amy Below, Luz
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Calvo, and Jerome Narvaez.
2 The “Federal Defendants” consist of: Kiran Ahuja, in her official capacity as the director of the
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U.S. Office of Personnel Management; the U.S. Office of Personnel Management; Shalanda
1 22, 2023, the CSU Defendants filed a demurrer and a motion to strike portions of Plaintiff’s
2 amended complaint. Before the superior court had an opportunity to resolve the CSU Defendants’
3 motion, the Federal Defendants removed the case to federal court on September 6, 2023, and filed
4 a motion to dismiss for lack of jurisdiction on September 13, 2023. Dkt. No. 1 at 2 (“Notice of
5 Removal”); Dkt. No. 6. That same day, the CSU Defendants filed an administrative motion
6 requesting leave to convert their pending state court demurrer into a Rule 12(b) motion to dismiss
7 the amended complaint. Dkt. No. 10. The Court granted their motion on September 25, 2023,
8 Dkt. No. 18, and the CSU Defendants filed their motion to dismiss on October 13, 2023. Dkt. No.
9 21.
10 The deadline for Plaintiff to respond to Federal Defendants’ motion to dismiss was
11 October 6, 2023. See Dkt. No. 20 at 2. Plaintiff did not file an opposition (or statement of non-
12 opposition) by (or after) that deadline. The deadline for Plaintiff to respond to CSU Defendants’
13 motion to dismiss was October 27, 2023. See Dkt. No. 20 at 2. Plaintiff did not file an opposition
14 (or statement of non-opposition) by (or after) that deadline, either.
15 On October 31, 2023, the Court issued an order directing Plaintiff to show cause why the
16 Federal and CSU Defendants’ motions to dismiss “should not be granted or, in the alternative,
17 why the case should not be dismissed for failure to prosecute,” and informing Plaintiff “that he can
18 seek assistance at the Legal Help Center.” Dkt. No. 23 (“OSC”). Plaintiff’s response to the OSC
19 was due by November 21, 2023, but he did not respond as ordered by (or after) that deadline.
20 Around that time, however, Mr. Morris did stipulate to the Federal Defendants’ dismissal (which
21 resolved their pending motion to dismiss, Dkt. Nos. 6 & 17). See Dkt. No. 26. Given his
22 participation in this filing, the Court issued another order on December 13, 2023 directing Plaintiff
23 to “show cause why the Court should not grant the CSU Defendants’ motion to dismiss, Dkt. No.
24 21, or, alternatively, dismiss the case in light of his failure to prosecute this action.” Dkt. No. 29.
25 The Court informed Plaintiff that this was his “final opportunity to explain his noncompliance and
26 nonparticipation in the case” and that a failure to respond would lead to the case’s dismissal. Dkt.
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1 No. 29 at 2. The Court again advised Plaintiff that he could seek free legal assistance through the
2 Legal Help Center. Id. at 3. No response was received by (or after) the December 22, 2023
3 response deadline.
4 II. LEGAL STANDARD
5 The district court may dismiss a case for failure to prosecute or for failure to comply with a
6 court order. See Fed. R. Civ. P. 41(b). “The authority of a court to dismiss sua sponte for lack of
7 prosecution has generally been considered an ‘inherent power,’ governed not by rule or statute but
8 by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly
9 and expeditious disposition of cases.” Link v. Wabash R. Co., 370 U.S. 626, 630–31 (1962).
10 “Despite this authority, dismissal is a harsh penalty and, therefore, it should only be imposed in
11 extreme circumstances.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (citations
12 omitted); see also Fed. R. Civ. P. 41(b) (stating that dismissal for failure to prosecute “operates as
13 an adjudication on the merits” unless the order says otherwise).
14 Courts must weigh five factors in determining whether to dismiss a case for failure to
15 prosecute: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to
16 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring
17 disposition of cases on their merits; and (5) the availability of less drastic alternatives.” See
18 Ferdik, 963 F.2d at 1260–61. A court need not make “explicit findings in order to show that it has
19 considered these factors,” although such findings are preferred. Id. at 1261. Here, the Court
20 considers each factor in turn, and finds that they weigh in favor of dismissal.
21 III. DISCUSSION
22 First, “[t]he public’s interest in expeditious resolution of litigation always favors
23 dismissal.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting Yourish v. Cal.
24 Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). The Court finds that here, Plaintiff’s ongoing lack
25 of responsiveness contravenes the “public’s interest in expeditious resolution of litigation.” See
26 id. Plaintiff’s deadline to respond to the CSU Defendants’ motion was nearly two months ago,
27 and his deadlines to file responses to the Court’s two orders to show cause (Dkt. Nos. 23 & 29)
1 Plaintiff’s non-engagement with these judicial proceedings has been due to extenuating but
2 temporary circumstances. Since ongoing non-responsiveness is anathema to expeditious
3 resolution of this or any judicial matter, this factor weighs in favor of dismissal.
4 Second, it is “incumbent” upon courts “to manage [their] docket[s] without being subject
5 to routine noncompliance” of litigants. See id. (citing Ferdik, 963 F.2d at 1261). Moreover, “[t]he
6 trial judge is in the best position to determine whether the delay in a particular case interferes with
7 docket management and the public interest.” Id. Here, Plaintiff has demonstrated routine
8 noncompliance. Plaintiff has repeatedly failed to meet deadlines or respond to Defendants’
9 motion. Plaintiff’s conduct “has consumed some of the court’s time that could have been devoted
10 to other cases on the docket.” See id. This factor therefore weighs in favor of dismissal.
11 Third, “[i]n determining whether a defendant has been prejudiced, [courts] examine
12 whether the plaintiff’s actions impair the defendant’s ability to go to trial or threaten to interfere
13 with the rightful decision of the case.” Malone v. U.S. Postal Serv., 833 F.2d 128, 131 (9th Cir.
14 1987). “Whether prejudice is sufficient to support an order of dismissal is in part judged with
15 reference to the strength of the plaintiff’s excuse for the default.” Id. (citation omitted). In
16 Malone, which involved a Rule 41(b) dismissal for failure to comply with a court order, the
17 district court found the plaintiff’s excuse for her failure to comply with a pretrial order to be
18 “groundless,” justifying dismissal. Id. And in Yourish, which also involved plaintiffs who failed
19 to obey a court order, the court concluded that the defendants had suffered “sufficient prejudice”
20 where the plaintiffs had only a “paltry excuse” for why they failed to timely amend their
21 complaint. 191 F.3d at 991–92.
22 Here, Plaintiff has provided no explanation for his conduct – conduct which has impeded
23 his case’s due progress. Though the delay at issue here is not yet as extreme as in other
24 circumstances, see e.g., Scarlett v. Coughlin, No. 22-CV-06992-HSG, 2023 WL 5988594 (N.D.
25 Cal. Sept. 14, 2023), there is no indication that anything will change. Unlike in Scarlett, where the
26 plaintiff at least was in contact with the Court to request extensions, Plaintiff Morris has not
27 engaged with the Court at all. The Court finds that it would be prejudicial to force the CSU
1 no less) based on the speculative possibility that Plaintiff will change his course and begin
2 || prosecuting his case. This factor weighs in favor of dismissal.
3 Fourth, the Court has attempted to use less drastic alternatives that have proven ineffective.
4 || The Court has entered two OSCs that expressly warned Plaintiff that his case was at risk of
5 dismissal for failure to prosecute. See Dkt. Nos. 23 & 29. The same orders also informed Plaintiff
6 || that he could seek assistance from the pro se help desk, and provided the information necessary for
7 him to do so. Jd. This factor thus weighs in favor of dismissal. See Ferdik, 963 F.2d at 1262
8 || (stating that Ninth Circuit authority “suggest[s] that a district court’s warning to a party that his [or
9 || her] failure to obey the court’s order will result in dismissal can satisfy the ‘consideration of
10 || alternatives’ requirement”).
11 Last, because “[p]ublic policy favors disposition of cases on the merits . . . this factor
12 || weighs against dismissal.” See Pagtalunan, 291 F.3d at 643. This is true here, where Plaintiff
5 13 would be precluded from litigating his claims due to his failure to prosecute.
14 Because four of the five factors weigh in favor of dismissal, the Court finds that dismissal
3 15 of Plaintiffs case for failure to prosecute is appropriate.
16 |] Iv. CONCLUSION
= 17 The Court DISMISSES the case WITHOUT PREJUDICE for failure to prosecute. The
18 || Clerk is DIRECTED to enter judgment in favor of the CSU Defendants and to close the case.
19 This order TERMINATES the CSU Defendant’s motion to dismiss. Dkt. No. 21.
20 IT IS SO ORDERED.
21 Dated: 1/2/2024
22 Alayrenl
73 HAYWOOD S. GILLIAM, JR.
United States District Judge
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