Unreported / Non-Citable
Background
On June 10, 2026, pro se plaintiff Kennedy Bosco filed a complaint in the U.S. District Court for the Central District of California against Tenet Healthcare Corporation, Trusted Resource Associates LLC, and JFK Memorial Hospital, Inc. The court granted Bosco's request to proceed in forma pauperis on July 13, 2026. However, Bosco failed to file proof of service of the summons and complaint within 90 days of filing the complaint.
On September 22, 2026, the court issued an Order to Show Cause why the action should not be dismissed for failure to prosecute. The court noted that although Bosco had lodged a proposed order directing service by the U.S. Marshal, he had filed no motion requesting U.S. Marshals Service. Bosco responded on October 7, 2026, stating his intent to have the Marshals Service effect service, but again failed to file a proper request. On October 13, 2026, the court ordered Bosco to file a compliant request within seven days and explicitly warned that failure to comply would result in dismissal of the action for failure to prosecute under Federal Rule of Civil Procedure 41(b).
Bosco filed nothing further, so the court found him in violation of the October 13, 2026 order. The Order to Show Cause was answered by his October 7 response but was not discharged, and the court concluded that the plaintiff had failed to comply with its orders or otherwise cooperate in prosecuting the action.
The Court’s Holding
Judge Kenly Kiya Kato dismissed the action without prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute and to comply with court orders, and ordered the Clerk of Court to close the action. The court affirmed that district courts possess sua sponte authority to dismiss actions for failure to prosecute or comply with court orders, citing Hells Canyon Preservation Council v. U.S. Forest Service and Ferdik v. Bonzelet. In deciding whether to dismiss, the court applied the five-factor test from Omstead v. Dell, Inc., weighing the public's interest in expeditious resolution of litigation, the court's need to manage its docket, the risk of prejudice to defendants, the public policy favoring disposition on the merits, and the availability of less drastic sanctions.
The court found that the first two factors weighed in favor of dismissal because Bosco's failure to comply with the October 13 order hindered the court's ability to move the case toward disposition and suggested he did not intend to litigate diligently. The third factor, prejudice to defendants, also favored dismissal because a rebuttable presumption of prejudice arises when a plaintiff unreasonably delays prosecution, and nothing in the record rebutted that presumption.
Although the fourth factor—public policy favoring decisions on the merits—ordinarily weighs against dismissal, the court held it did not outweigh Bosco's failure to obey court orders, given that he had been instructed on his responsibilities, granted sufficient time, and warned of the consequences. The fifth factor, availability of less drastic sanctions, also favored dismissal because the court could not move the case forward without Bosco's compliance or participation. The court emphasized that it had explicitly warned Bosco about the possibility of dismissal, satisfying the requirement that dismissal not be entered unless the plaintiff has been notified it is imminent.
Key Takeaways
- District courts have sua sponte authority under Rule 41(b) to dismiss actions for failure to prosecute or to comply with court orders.
- Before dismissing for failure to prosecute, courts must weigh five factors: the public interest in expeditious resolution, the court's docket management needs, prejudice to defendants, the policy favoring merits decisions, and the availability of less drastic sanctions.
- A rebuttable presumption of prejudice to defendants arises when a plaintiff unreasonably delays prosecution of an action.
- Pro se plaintiffs must file proper motions for U.S. Marshals Service rather than merely lodging proposed orders or stating an intent to use the Marshals.
- Dismissal without prejudice is appropriate when the plaintiff has been explicitly warned that dismissal is imminent and fails to cure the deficiency within the time granted.
Why It Matters
This order reinforces that pro se status does not excuse compliance with procedural rules, particularly regarding service of process. Even when a plaintiff indicates an intent to use the U.S. Marshals Service, the court requires a proper motion rather than informal requests or lodged documents. The decision illustrates that repeated warnings and opportunities to cure will support dismissal when a plaintiff remains non-compliant.
The ruling demonstrates the application of the Omstead five-factor test in the Central District of California and serves as a reminder that district courts actively manage their dockets. Courts will dismiss cases where plaintiffs fail to take basic steps to move litigation forward, even when the dismissal is without prejudice and the plaintiff has technically responded to an order to show cause.