Salih v. City of Fremont

Background

Vincent Salih filed the complaint in October 2023, and the defendants answered in December 2023. During 2024 and 2025, the defendants attempted to conduct discovery by serving written discovery, noticing Salih’s deposition, and preparing case-management statements.

In June 2025, the court ordered Salih to explain why the case should not be dismissed for failure to prosecute. Salih responded that he intended to pursue the action but did not explain his earlier lack of responsiveness. The court accepted the response but warned that participating in discovery was Salih’s responsibility and that continued failure to do so could result in dismissal.

After that warning, the defendants sent Salih a letter, the court’s order, discovery requests, and a deposition notice. Salih did not respond to the discovery requests or requests for admission. He confirmed receiving the deposition notice by telephone but did not attend the deposition; he left defense counsel a voicemail that morning without giving an explanation or proposing another date. Salih also did not timely respond to the defendants’ motion to dismiss.

Legal standard

Federal Rule of Civil Procedure 41(b) permits a defendant to seek dismissal when a plaintiff fails to prosecute an action or comply with the rules or a court order. The court considered five factors: the public interest in resolving cases promptly, the court’s need to manage its docket, the risk of prejudice to the defendants, the public policy favoring decisions on the merits, and whether less severe sanctions were available.

Court’s analysis

The court found a risk of prejudice to the defendants. It reasoned that witnesses’ memories could fade, particularly because Salih had not made discovery requests and therefore had not alerted potential witnesses that they might need to recall the events at issue. The defendants had also incurred additional costs by preparing case-management statements on their own and preparing for a deposition that was canceled at the last minute.

The court also found that lesser sanctions were not adequate. Both the court and the defendants had clearly warned Salih that he needed to prosecute the case, including by participating in discovery, but he ignored the warning. The court noted that Salih had delayed the case for nearly two years and had not responded to the pending motion. Based on information from another case indicating that Salih was unable to pay the filing fee, the court concluded that monetary fines would not be a meaningful or appropriate alternative.

Disposition

After weighing the factors, the court found that dismissal with prejudice was appropriate. The court therefore granted the defendants’ motion and dismissed the action with prejudice for failure to prosecute.