Michelle Moss v. City of Los Angeles , 663 F. App'x 529 ( 2016 )

FILED
NOT FOR PUBLICATION
SEP 22 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELLE MOSS, an individual; et al., No. 12-57117
Plaintiffs - Appellants, D.C. No. 2:11-cv-09098-RGK-E
v.
MEMORANDUM*
THE CITY OF LOS ANGELES; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted July 11, 2016**
San Francisco, California
Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Plaintiffs appeal the district court’s dismissal of their lawsuit with prejudice
for failure to prosecute. Plaintiffs concede they did not intend to prosecute their
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
claims, but contend dismissal should have been without prejudice. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
We look to five factors to determine whether the district court abused its
discretion by dismissing with prejudice for failure to prosecute: “(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 the defendants; (4) the public policy favoring
disposition of cases on their merits[;] and (5) the availability of less drastic
sanctions.” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting
Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). All but the fourth
factor weigh in favor of affirming the district court. The first factor (public interest
in expeditious resolution of litigation) always favors dismissal. Yourish v. Cal.
Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). The second factor (the court’s need
to manage its docket) also weighs in favor of dismissal. The court, which was “in
a superior position to evaluate the effects of delay,” id., had already denied
Plaintiffs’ requests to extend time or to dismiss without prejudice, The third factor
(prejudice to defendants) weighs in favor of dismissal because Plaintiffs’ actions
“impair[ed] [Defendants’] ability to go to trial.” Adriana Int'l Corp. v. Thoeren,
913 F.2d 1406, 1412 (9th Cir. 1990). The fifth factor (availability of lesser
sanctions) also weighs in favor of dismissal with prejudice; the court had already
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considered the lesser sanction of dismissal without prejudice and determined it
would not be appropriate.1
Plaintiffs contend the district court abused its discretion by erroneously
concluding that “by law [the dismissal for failure to prosecute is] always . . . with
prejudice.” ER 11. This error was harmless; the court had already concluded
weeks earlier that Defendants would be unduly prejudiced by dismissal without
prejudice. Similarly, Plaintiffs’ contention that the court abused its discretion
because it gave no warning before dismissing with prejudice is unfounded.
Plaintiffs indicated that they did not wish to proceed with their case and the district
judge informed Plaintiffs’ counsel at the hearing prior to dismissal that the case
would be dismissed for lack of prosecution based on Plaintiffs’ refusal to move
forward.
Plaintiffs also ask us to review the court’s prior order denying their motion
to dismiss the case without prejudice. But interlocutory orders like this one “are
1
The only remaining claims at the time the case was dismissed were
state law claims. Plaintiffs had previously moved to amend the complaint to
substitute real parties for ten unnamed Doe defendants. The court denied their
motion; that denial was not appealed. Plaintiffs then withdrew all federal claims.
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not appealable after a dismissal for failure to prosecute.” Al-Torki v. Kaempen, 78
F.3d 1381, 1386 (9th Cir. 1996).2
AFFIRMED.
2
Defendants’ July 15, 2013 Motion to Take Judicial Notice (ECF No.
26) is denied.
4