NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

R. BAEZA; et al., 

Plaintiffs-Appellants, 

 v. 

LEROY D. BACA, 

Defendant-Appellee.

No. 15-55391 

D.C. No. 

2:07-cv-03109-DDP-SH 

MEMORANDUM*

CHRISTOPHER CORRAL; et al., 

Plaintiffs-Appellants, 

 v. 

LEROY D. BACA, 

Defendant-Appellee.

No. 15-55398 

D.C. No. 

2:07-cv-05749-DDP-SH 

Appeals from the United States District Court

for the Central District of California

Dean D. Pregerson, District Judge, Presiding

Argued and Submitted June 7, 2017

Pasadena, California

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

JUL 28 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Before: LIPEZ,** BEA, and HURWITZ, Circuit Judges.

R. Baeza and C. Corral (collectively, “Plaintiffs”) appeal the district court’s 

dismissals of their actions pursuant to Federal Rule of Civil Procedure 41(b) for 

failure to prosecute. We have jurisdiction under 28 U.S.C. § 1291 and affirm. 

Because the parties are familiar with the factual and procedural background, we 

repeat only those facts necessary to resolve the issues raised on appeal.

1. Plaintiffs contend that the district court abused its discretion when it 

vacated their motions for summary adjudication, for class certification, and to 

consolidate their actions. Every court has the power “to control the disposition of 

the causes on its docket with economy of time and effort for itself, for counsel, and 

for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). Defendant

requested vacation of the motions because pending motions in another case before 

the court, Thomas v. Baca, No. 2:04-cv-08448-DDP-SH (C.D. Cal. Oct. 12, 2004),

involved the same defendant, the same plaintiffs’ attorney, and virtually identical 

claims. The district court did not abuse its discretion when it vacated Plaintiffs’ 

motions because of the ongoing, related litigation in Thomas.

1

 

** The Honorable Kermit V. Lipez, United States Circuit Judge for the 

First Circuit, sitting by designation.

1 The district court initially certified the class in Thomas, but decertified the 

class after the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 564 

U.S. 338 (2011).
3 

2. Plaintiffs also contend that the district court abused its discretion when it 

dismissed their actions for failure to prosecute. In reviewing a dismissal for failure 

to prosecute, we consider “(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 alternatives.” Yourish v. Cal. Amplifier, 191 F.3d 

983, 990 (9th Cir. 1999) (quoting Hernandez v. City of El Monte, 138 F.3d 393, 

399 (9th Cir. 1998)). But, “[o]ur cases have tended to focus on the factors of

prejudice and delay,” and a plaintiff’s failure to prosecute an action diligently can 

be “sufficient by itself to justify a dismissal.” Nealey v. Transportacion Maritima 

Mexicana, S.A., 662 F.2d 1275, 1279–80 (9th Cir. 1980). We have affirmed a 

dismissal for failure to prosecute after the plaintiff failed to take action for nine 

months. See Alexander v. Pac. Mar. Ass’n, 434 F.2d 281, 283–84 (9th Cir. 1970). 

Nothing of substance happened in Plaintiffs’ actions for over five years. 

Plaintiffs allowed the scheduled trial dates to lapse without comment. Some of this 

delay can be attributed to the ongoing litigation and settlement discussions in 

Thomas. However, there was an eighteen-month period of inactivity between this 

Court’s denial of a petition for rehearing of the denial of the petition for permission 

to file an interlocutory appeal of the decertification order in Thomas in September 

2012 and the Plaintiffs’ attempt to reactivate their actions in March 2014. 
4 

Plaintiffs’ lead counsel claims that she was unable to work during this eighteenmonth period because she was recovering from surgery. But counsel performed at 

least some work in Thomas during this time period. More importantly, Plaintiffs 

provide no explanation why co-counsel, a former magistrate judge, could not have 

prosecuted the actions during lead counsel’s disability, or why the district court 

was not asked to stay the actions during counsel’s disability. The district court did 

not abuse its discretion in concluding that the delay prejudiced Defendant because 

the memories of jail employees, who would be witnesses in these actions, faded 

over time. 

3. Plaintiffs contend that the district court abused its discretion when it

denied their motions to reactivate their actions after granting Defendant’s Rule 

41(b) motions to dismiss. Once the district court dismissed the actions for failure 

to prosecute, however, the motions to reactivate became moot and there was no 

need to set a discovery cutoff date, or new pretrial dates, or trial dates.

AFFIRMED.