                           NOT FOR PUBLICATION                           FILED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.




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