Jose Escobar v. Transdev Services, Inc. et al

Filing 24

MEMORANDUM (In Chambers) Order to Show Cause re Dismissal for Failure to Prosecute and Failure to Comply with Court Orders by Judge Dale S. Fischer. Refer to the Court's order for details. (pso)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
MEMORANDUM

Case No.
Title

CV 15-1610 DSF (VBKx)

Date

7/13/16

Jose Escobar v. Transdev Services, Inc.

Present: The Honorable

DALE S. FISCHER, United States District Judge

Debra Plato
Deputy Clerk

Not Present
Court Reporter

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

(In Chambers) Order to Show Cause re Dismissal for Failure to
Prosecute and Failure to Comply with Court Orders

This Court has authority to dismiss an action for failure to prosecute in order to
ensure “the orderly and expeditious disposition of cases.” Link v. Wabash Railroad Co.,
370 U.S. 626, 631 (1962) (noting that Rule 41(b) of the Federal Rules of Civil Procedure
expressly recognizes this power). In determining whether dismissal for lack of
prosecution is proper, the Court weighs several factors, including: (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 Defendant, (4) the availability of less drastic sanctions, and (5) the
public policy favoring the disposition of cases on their merits. Pagtalunan v. Galaza,
291 F.3d 639, 642 (9th Cir. 2002); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
1992) (recognizing court’s inherent power to control its docket by dismissal, where
appropriate); see also Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (noting factors
to be weighed before dismissing an action for lack of prosecution included public’s
interest in expeditious resolution of litigation and court’s need to manage its docket).
Dismissal of this case without prejudice is warranted under Rule 41(b). On March
19, 2015, the Court set a Scheduling Conference for June 1, 2015 at 11:00 a.m. Because
the parties had cooperated in suggesting dates for various pre-trial matters and a trial date,
the Court set those dates and vacated the Conference. The Court’s Order re Jury Trial
was issued on May 26, 2015. The Order established the dates set by the parties for all
pretrial matters. It set the last day to participate in alternative dispute resolution as
February 18, 2016, a pretrial conference date of July 25, 2016, and a trial date of August
23, 2016.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
MEMORANDUM
On December 15, 2015, the Court granted the motion by plaintiff’s counsel to be
relieved as attorney of record. A mediation completion date was set for May 30, 2016.
Although an initial conference was held via telephone on August 20, 2015, the parties
never complied with the Court ordered mediation.
The parties were ordered to file their Memo of Contentions of Fact and Law,
Exhibit and Witness Lists, Motions in Limine and a Status Report re settlement
negotiations by July 1, 2016. However, no documents have been filed. In addition, the
parties were ordered to lodge their Pretrial Conference Order, an Agreed Set of Jury
Instructions and Verdict Forms, a Statement Regarding Disputed Instructions and
Verdicts by July 11, 2016. Again, no documents have been filed.
Plaintiff’s failure to pursue this action, despite the Court’s orders, necessarily
implicates both the first and second factors, i.e., the public’s interest in expeditious
resolution of litigation and the Court’s need to manage its docket efficiently.
Pagtalunan, 291 F.3d at 642. Indeed, Plaintiff’s noncompliance - in the absence of a
dismissal - would “allow[] Plaintiff[] to control the pace of the docket rather than the
Court.” Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (internal
quotation marks omitted). As to the third factor, there is little obvious prejudice to
Defendant at this time, other than the delay in the proceedings so near to trial, and the
time and fees that would be required to attend a pretrial conference that would necessarily
have to be continued for Plaintiff’s failure to provide the required documents.
With respect to the fourth factor, i.e., the availability of less drastic alternatives, the
Court could offer Plaintiff another opportunity to comply with its orders but there is
nothing in this record to suggest that he would do so.
The fifth factor to be considered, i.e., the preference for resolving cases on the
merits, favors the continuation of this case. The Court would prefer to resolve the case on
the merits, but, if Plaintiff will not cooperate, this cannot be done. Thus, dismissal
pursuant to Rule 41(b) appears warranted. See Ferdik, 963 F.2d at 1263 (finding
dismissal appropriate where supported by three factors). Nevertheless, considering
Plaintiff’s pro se status, and his noncompliance, the Court will only conditionally dismiss
the case without prejudice for failure to prosecute and failure to comply with Court
orders. The Court will reinstate the action and set a pretrial conference date if - no later
than August 1, 2016, Plaintiff cooperates with defense counsel to choose a mediator and
schedule a mediation at a mutually convenient time, and submits a proposed pretrial
conference order, verdict form, and a memorandum of contentions of fact and law.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
MEMORANDUM
(Pursuant to the Court’s Order re Jury Trial, failure to submit jury instructions has waived
Plaintiff’s right to a jury trial.) Failure to comply will result in a final dismissal.

IT IS SO ORDERED.

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