Star Fabrics, Inc. v. Tres Bien Clothing, Inc. et al

Filing 63

MINUTE ORDER IN CHAMBERS by Judge Percy Anderson: As a result of Plaintiff's violation of the Court's Scheduling Order, this action is dismissed without prejudice. The Court has dismissed all of the federal claims over which it has origina l jurisdiction. Accordingly, the Court declines to exercise supplemental jurisdiction over the remaining state law crossclaims. The Court therefore dismisses the remaining cross-claims without prejudice. The Pretrial Conference scheduled for March 6, 2015, and the Trial scheduled for April 7, 2015, are vacated. The Court's March 2, 2015 Order directing defendant and cross-claimant Tres Bien Clothing, Inc. to file a motion for default judgment or other dispositive motion is vacated. (Made JS-6. Case Terminated.) (smo)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-3063 PA (VBKx)

Title

Star Fabrics, Inc. v. Tres Bien Clothing, Inc., et al.

Present: The Honorable

Date

March 5, 2015

PERCY ANDERSON, UNITED STATES DISTRICT JUDGE

Stephen Montes Kerr

Not Reported

N/A

Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None

None

Proceedings:

IN CHAMBERS

On December 17, 2014 the Court was advised that this matter had settled. The Court issued an
order on December 23, 2014 stating that the parties had ten days to either file a dismissal or to place the
settlement on the record. The order warned that if the parties did not take one of these actions within ten
days, this action would remain on the Court’s active trial calendar with all pretrial dates in effect. The
parties have not filed a dismissal or made arrangements to place their settlement on the record. As a
result, the Pretrial Conference remained on the Court’s calendar, and the parties were required to comply
with procedures and orders related to the Pretrial Conference.
Pursuant to Local Rule 16 and this Court’s July 7, 2014 Scheduling Order, plaintiff Star Fabrics,
Inc. (“Plaintiff”) was required to file certain pretrial documents with the Court by February 20, 2015,
including but not limited to, the Proposed Joint Pretrial Conference Order, Joint Exhibit and Witness
Lists, Contentions of Fact and Law, and a Status Report Regarding Settlement. Plaintiff has violated the
Local Rules and this Court’s Scheduling Order by failing to lodge or file any pretrial documents.
This Court’s Scheduling Order specifically warns that “[t]he failure to attend the [Final Pretrial
Conference] or to submit in conformity with this order, the jury instructions, pre-trial exhibit stipulation,
joint statement of the case, voir dire questions, summary of witness testimony and times estimates,
proposed Pretrial Conference Order or the memorandum of contentions of fact and law may result in the
dismissal of the action, striking the answer and entering a default, and/or the imposition of sanctions.”
Dismissal is appropriate here because Plaintiff has failed to adequately prosecute this action or
comply with the Court’s orders. Federal Rule of Civil Procedure 41(b) provides that a defendant may
move for dismissal of an action for “failure of the plaintiff to prosecute or to comply with these rules or
any order of court.” Although Rule 41(b) provides for dismissal on the motion of the defendant, the
Court can also dismiss an action sua sponte pursuant to Rule 41(b). See Link v. Wabash R.R. Co., 370
U.S. 626, 629-30, 82 S. Ct. 1386, 1388, 8 L. Ed. 2d 734 (1962); see also Alexander v. Pac. Mar. Ass’n,
434 F.2d 281, 283-84 (9th Cir. 1970). The permissive language of Rule 41 — that defendant “may”
move for dismissal — does not limit the Court’s ability to dismiss sua sponte if the defendant makes no
motion for dismissal. Link, 370 U.S. at 630, 82 S. Ct. at 1388-89. The Court has the inherent power to
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-3063 PA (VBKx)

Date

Title

March 5, 2015

Star Fabrics, Inc. v. Tres Bien Clothing, Inc., et al.

achieve the orderly and expeditious disposition of cases by dismissing actions pursuant to Rule 41(b)
with prejudice for failure to prosecute or for failure to comply with a court order. See id. at 629-30, 82
S. Ct. at 1388-89 (dismissal for failure to prosecute); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.
1992) (same); Yourish v. Cal. Amplifier, 191 F.3d 983, 987-88 (9th Cir. 1999) (dismissal for failure to
comply with court order).
In Henderson v. Duncan, 779 F.2d 1421 (9th Cir. 1986), the Ninth Circuit set forth five factors
for a district court to consider before resorting to the penalty of dismissal: “(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 sanctions.” Id. at 1423. Cases involving sua sponte dismissal merit special focus on
considerations relating to the fifth Henderson factor. Hernandez v. City of El Monte, 138 F.3d 393, 399
(9th Cir. 1998). Dismissal is appropriate “where at least four factors support dismissal, or where at least
three factors ‘strongly’ support dismissal.” Id. (internal citations omitted) (citing Ferdik, 963 F.2d at
1263).
Here, in assessing the first Henderson factor, the public’s interest in expeditious resolution of
litigation will be satisfied by a dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002)
(citing Yourish, 191 F.3d at 990 (public’s interest in expeditious resolution of litigation always favors
dismissal)). Relatedly, with respect to the second factor, the Court’s need to manage its docket will be
served by dismissal. See id.
The third Henderson factor at least marginally favors dismissal. The defendants may be further
prejudiced unless the complaint is dismissed. See Yourish, 191 F.3d at 991; Pagtalunan, 291 F.3d at 642
(holding that failing to timely amend risks prejudice and can justify dismissal).
In considering the fourth and fifth Henderson factors, this Court’s July 7, 2014 Scheduling Order,
as noted above, warned Plaintiff that the failure to attend the Final Pretrial Conference or to submit the
required pretrial documents may result in the dismissal of the action. Despite this warning, Plaintiff
failed to submit any pretrial documents by the date set by the Court. Additionally, the Court intends to
dismiss this action without prejudice. Accordingly, the fifth Henderson factor favors dismissal because
the Court has adopted the “less-drastic” sanction of dismissal without prejudice. See McHenry v.
Renne, 84 F.3d 1172, 1178 (9th Cir. 1996) (district court should first consider less drastic alternatives to
dismissal with prejudice).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-3063 PA (VBKx)

Date

Title

March 5, 2015

Star Fabrics, Inc. v. Tres Bien Clothing, Inc., et al.

As a result of Plaintiff’s violation of the Court’s Scheduling Order, this action is dismissed
without prejudice. See Fed. R. Civ. P. 41(b); see also Yourish, 191 F.3d at 986-88; Ferdik, 963 F.2d at
1260. The Court has dismissed all of the federal claims over which it has original jurisdiction.
Accordingly, the Court declines to exercise supplemental jurisdiction over the remaining state law crossclaims. See 28 U.S.C. § 1367(c)(3). The Court therefore dismisses the remaining cross-claims without
prejudice. The Pretrial Conference scheduled for March 6, 2015, and the Trial scheduled for April 7,
2015, are vacated. The Court’s March 2, 2015 Order directing defendant and cross-claimant Tres Bien
Clothing, Inc. to file a motion for default judgment or other dispositive motion is vacated.
IT IS SO ORDERED.

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