Henry C. Quan; v. City of Los Angeles

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENRY C. QUAN; et al.,
Plaintiffs - Appellants,
v.
CITY OF LOS ANGELES,
Defendant - Appellee.
No. 14-55185
D.C. No. 2:03-cv-02190-GAF-
AJWX
MEMORANDUM*
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.
FILED
FEB 12 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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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,
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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.
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