Yang v. Francesca's Collections, Inc., 4:17-cv-04950

Plaintiff Mie Yang’s counsel moved to withdraw on March 8, 2018, citing inability to communicate with Yang after repeated unsuccessful contacts beginning December 17, 2017.
The court granted counsel’s motion to withdraw on April 19, 2018, and simultaneously ordered Yang to show cause by April 30, 2018 why the case should not be dismissed for failure to prosecute.
Yang failed to attend a court-ordered April 10, 2018 hearing regarding the motion to withdraw and did not respond to the April 19, 2018 order to show cause.
The court considered the Federal Rule of Civil Procedure 41(b) authority and the Ninth Circuit five-factor test for dismissal for failure to prosecute.
The court found four of the five Ferdik/Pagtalunan factors weighed in favor of dismissal (public interest in expedition, docket management, prejudice to defendant, and lack of effective alternatives), with only the policy favoring disposition on the merits weighing against dismissal.
The court dismissed the action without prejudice and directed the Clerk to close the case.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal for failure to prosecute is appropriate under Rule 41(b) and the Ninth Circuit five-factor test	Yang did not present any argument or excuse; she was unresponsive	Francesca’s argued dismissal was warranted given Yang’s noncommunication and failures to appear or respond	Court dismissed without prejudice: four factors favored dismissal and less drastic alternatives had failed
Whether the court properly considered and weighed the five Ferdik/Pagtalunan factors	No showing by Yang to counterweight factors	Defendant relied on Yang’s absence to show prejudice and docket interference	Court found public interest in expedition, docket management, prejudice, and lack of alternatives favored dismissal
Whether prior warnings satisfied the requirement to consider less drastic alternatives	Yang offered no response to the warnings	Defendant emphasized court’s orders and warnings were ignored	Court held prior warnings and OSC satisfied consideration of alternatives requirement
Whether dismissal should be with or without prejudice	No argument from Yang	Defendant sought dismissal (court discretion)	Court dismissed without prejudice (stated in order)

Link v. Wabash R. Co., 370 U.S. 626 (1962) (recognizing inherent authority to dismiss for lack of prosecution)
Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992) (articulating standards for dismissal and consideration of alternatives)
Pagtalunan v. Galaza, 291 F.3d 639 (9th Cir. 2002) (stating public interest in expeditious resolution favors dismissal)
Yourish v. California Amplifier, 191 F.3d 983 (9th Cir. 1999) (discussing prejudice from delay and weak excuses)
Malone v. United States Postal Service, 833 F.2d 128 (9th Cir. 1987) (evaluating excuses for failure to comply with court orders)