NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 28 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
R. BAEZA; et al., No. 15-55391
Plaintiffs-Appellants, D.C. No.
2:07-cv-03109-DDP-SH
v.
LEROY D. BACA, MEMORANDUM*
Defendant-Appellee.
CHRISTOPHER CORRAL; et al., No. 15-55398
Plaintiffs-Appellants, D.C. No.
2:07-cv-05749-DDP-SH
v.
LEROY D. BACA,
Defendant-Appellee.
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.
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).
2
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.
3
Plaintiffs’ lead counsel claims that she was unable to work during this eighteen-
month 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.
4