Henry Quan v. City of Los Angeles

FILED NOT FOR PUBLICATION FEB 12 2016 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HENRY C. QUAN; et al., No. 14-55185

Plaintiffs - Appellants, D.C. No. 2:03-cv-02190-GAF- AJWX v.

CITY OF LOS ANGELES, MEMORANDUM*

Defendant - Appellee.

Appeal from the United States District Court for the Central District of California Gary A. Feess, District Judge, Presiding

Argued and Submitted February 5, 2016 Pasadena, California

Before: REINHARDT, PAEZ, and M. SMITH, Circuit Judges.

Henry Quan, Angela Chu, Thomas Danzek, and O’Neil Carter (“Plaintiffs”)

appeal the district court’s order dismissing their case with prejudice for lack of

prosecution. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.  The district court did not abuse its discretion by terminating Plaintiffs' case

for lack of prosecution eleven years after it was first filed in 2003. See Malone v.

U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987). The court properly applied

the Ninth Circuit’s five-factor test for determining whether to dismiss a case for

lack of prosecution. In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994). Most

importantly, the court found that the actions of Plaintiffs’ counsel harmed “the

public’s interest in expeditious resolution of litigation” and interfered with “the

court’s need to manage its docket.” Id.

Plaintiffs’ counsel first filed an ex parte request for a continuance of the

November 19, 2013 trial date because of health issues on October 10, 2013. The

court granted that request and continued the trial to January 28, 2014, but expressly

warned that any future continuance requests would be denied. The court instructed

Plaintiffs’ attorney to find substitute counsel if his health prevented him from

trying the case: “Let me be clear . . . . If this case doesn’t go to trial on the 28th of

January, if somebody isn’t here to answer ready, I will dismiss the case for lack of

prosecution, period.” Despite this warning, on December 20, 2013, Plaintiffs’

counsel made a second ex parte request to continue the trial to February 18, 2014,

citing continuing health problems. Yet Plaintiffs’ counsel acknowledged that

substitute counsel was not actually available on January 28 or on February 18,

2 2014. Given that Plaintiffs’ counsel ignored the district court’s clear warnings

regarding future continuances, the district court’s decision to dismiss Plaintiffs’

case was not surprising

Under the circumstances and in light of the district court’s intimate

familiarity with the history of the case, the district court did not abuse its discretion

in dismissing Plaintiffs’ case for lack of prosecution.

AFFIRMED.

3