1- OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SAUL AVILA, 

No. 6:16-cv-00493-HZ

Plaintiff,

OPINION & ORDER

v.

CITY OF SALEM, OREGON;

JERRY MOORE; BRUCE FINERAN;

Defendants.

Saul Avila

1212 Hemlock Loop

Independence, OR 97351

Plaintiff Pro Se

Sarah D. Foreman

City Attorney’s Office

555 Liberty Street, Suite 205

Salem, OR 97301

Attorney for Defendants

Case 6:16-cv-00493-HZ Document 34 Filed 01/26/17 Page 1 of 5
2- OPINION & ORDER

HERNÁNDEZ, District Judge:

Defendants move to dismiss this case due to Plaintiff’s failure to prosecute. The Court 

grants Defendants’ motion. 

BACKGROUND

Plaintiff filed his complaint pro se on March 23, 2016. Compl., ECF 2. On May 22, 2016, 

attorney Leonard Berman entered a Notice of Association of Counsel. Notice, ECF 8. Two 

weeks later, Plaintiff filed an amended complaint. Am. Compl., ECF 9. The Court held a Rule 16 

Conference on August 15, 2016, in which it ordered discovery to be completed by November 16, 

2016. Minutes, ECF 18. On September 23, 2016, Mr. Berman filed a motion to withdraw 

representation in this case. Mot. Withdraw, ECF 21. In response, Defendants requested a hearing 

to discuss several issues with discovery. Def. Resp. Mot. Withdraw, ECF 23. 

Defendants’ counsel, Sarah Foreman, submitted a declaration in which she stated that, on 

August 11, 2016, Defendants served their First Request for Production and Interrogatories 

(“Discovery Request”) on Plaintiff. Foreman Decl. ¶ 3, ECF 24. Plaintiff’s response was due on 

or about September 15, 2016. Id. Plaintiff never responded. Id.

The Court granted Mr. Berman’s motion to withdraw on October 14, 2016. Minutes, ECF 

26. On October 24, 2016, Defendants moved to compel production of documents in response to 

the Discovery Request. Mot. Compel, ECF 27. Defendants also asked the Court to dismiss this 

case if Plaintiff failed to produce the requested discovery. Id. On November 16, 2016, this Court 

granted Defendants’ motion in part. Order, ECF 29. The Court granted the motion to compel and 

ordered Plaintiff to respond to Defendants’ Discovery Request within 21 days of the order. Id.

The Court denied Defendants’ motion to dismiss; however, the Court stated that Defendants 

Case 6:16-cv-00493-HZ Document 34 Filed 01/26/17 Page 2 of 5
3- OPINION & ORDER

could renew their motion if Plaintiff failed to comply with the Court’s order to compel 

production. Id.

Plaintiff failed to comply with this Court’s November 16, 2016 Order granting 

Defendants’ motion to compel production of the Discovery Request. Foreman Decl. II ¶ 4, ECF 

32. Defendants’ counsel declares that she spoke to Plaintiff on December 8, 2016. Id. at ¶ 2.

According to Defendants’ counsel, Plaintiff “said he was okay with ‘giving up the case’ and did 

not object to Defendants’ Renewed Motion to Dismiss.” Id. Defendants filed their Motion to 

Dismiss for Lack of Prosecution on December 9, 2016. Mot. Dismiss, ECF 31. Plaintiff did not 

respond. 

This Court issued an Order to Show Cause on December 27, 2016, in which it ordered 

Plaintiff to appear in writing within 14 days to show cause why this case should not be dismissed 

for failure to prosecute. Plaintiff failed to appear.

STANDARD

Federal Rule of Civil Procedure 41(b) allows involuntary dismissal of an action “[i]f the 

plaintiff fails to prosecute or to comply with these rules or a court order.” Subject to a few 

exceptions detailed in the Rule, a dismissal under Rule 41(b) “operates as an adjudication on the 

merits.” Fed. R. Civ. P. 41(b). 

The Court must weigh five factors to determine whether dismissal under Rule 41(b) is 

warranted: “(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.” Moss v. 

The City of Los Angeles, No. 12-57117, 2016 WL 5224360, at *1 (9th Cir. Sept. 22, 2016)

(citing Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010)). Dismissal may be affirmed 

Case 6:16-cv-00493-HZ Document 34 Filed 01/26/17 Page 3 of 5
4- OPINION & ORDER

when at least four factors favor dismissal or at least three factors strongly favor dismissal. 

Calloway v. Hayward, 651 F. App'x 637, 639 (9th Cir. 2016) (citing Yourish v. Cal. Amplifier,

191 F.3d 983, 990 (9th Cir. 1999)).

DISCUSSION

The Court applies the Ninth Circuit’s five-factor balancing test and concludes that 

dismissal of this case is warranted. 

The first factor, the public’s interest in expeditious resolution of litigation, “always favors 

dismissal.” Calloway, 651 F. App’x at 639 (quoting Pagtalunan v. Galaza, 291 F.3d 639, 642 

(9th Cir. 2002)). 

The second factor, the Court’s need to manage its docket, weighs in favor of dismissal as 

well. Plaintiff’s petition “has consumed some of the court's time that could have been devoted to 

other cases on the docket.” See Pagtalunan, 291 F.3d at 642 (noting that “it is incumbent upon 

the court to manage its docket without being subject to routine noncompliance of litigants”). This 

case was filed nearly 10 months ago yet Plaintiff has failed to produce any discovery to 

Defendants. Plaintiff has provided no indication since filing his Amended Complaint in June of 

2016 that he intends to move this case forward. Furthermore, he does not challenge Ms. 

Foreman’s declaration stating that Plaintiff indicated he was going to give up pursuing the case.

The third factor, risk of prejudice to Defendants, weighs slightly in favor of Defendants. 

Defendants argue that delay inherently increases the risk that witnesses’ memories will fade and 

evidence will become stale. While the Court agrees, it also notes that, while “the mere pendency 

of a lawsuit is prejudicial . . . it cannot, by itself, be considered prejudicial enough to warrant 

dismissal.” Id. (citing Ash v. Cvetkov, 739 F.2d 493, 495 (9th Cir. 1984)). 

Case 6:16-cv-00493-HZ Document 34 Filed 01/26/17 Page 4 of 5
5- OPINION & ORDER

The fourth factor, the public policy favoring disposition of cases on their merits, 

inherently weighs against dismissal. Id. (citing Pagtalunan, 291 F.3d at 643).

The last factor, the availability of less drastic sanctions, weighs in favor of dismissal. 

“[A] warning that dismissal will result from disobeying a court order can constitute adequate 

consideration of alternatives[.]” Id. (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.

1992)). Here, the Court ordered Plaintiff to comply with Defendants’ Motion to Compel. 

Plaintiff failed to comply. Then, the Court ordered Plaintiff to show cause why this case should 

not be dismissed for failure to prosecute. Again, Plaintiff failed to comply. Plaintiff has 

communicated to Defendants and this Court through his actions that he does not intend to 

prosecute this case. Thus, there are no less drastic sanctions available. 

CONCLUSION

All of the factors except for the public policy favoring disposition of cases on their merits 

favor dismissal. Accordingly, the Court dismisses this case under Rule 41(b). Defendants’ 

Motion to Dismiss for Lack of Prosecution [31] is granted.

IT IS SO ORDERED.

Dated this __________________ day of ____________________________, 2017. 

 

__________________________________________

MARCO A. HERNÁNDEZ

United States District Judge

Case 6:16-cv-00493-HZ Document 34 Filed 01/26/17 Page 5 of 5