Pinzon v. Jensen et al

Filing 114

ORDER DISMISSING CASE For Lack Of Prosecution, signed by District Judge Anthony W. Ishii on 9/19/2013. CASE CLOSED.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ABRAHAM G. PINZON,

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Plaintiff,
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v.
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RON JENSEN, RON JENSEN
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CONSTRUCTION, PINECREST
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MARKET, DAN VAUGHN, and DOES 1- )
50,
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Defendants.
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____________________________________ )

CIV-F-08-1543 AWI SKO
ORDER DISMISSING CASE FOR
LACK OF PROSECUTION

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I. History

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Defendant Dan Vaughn was renovating his house. Defendant Ron Jensen was the

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general contractor on the project. In July 2006, Vaughn hired Plaintiff Abraham Pinzon to do tile

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work as part of the renovation. Vaughn paid Pinzon weekly, often taking money from the cash

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register at Defendant Pinecrest Market where Vaughn was the part owner/general manager. On

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October 10, 2006, Vaughn fired Pinzon. Pinzon alleges that Vaughn did not pay him his full

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wages and further made threatening/racially charged remarks.

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Pinzon first filed suit in small claims court. The court found for Defendants. Pinzon then

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filed suit in the Eastern District of California, alleging racial discrimination. Defendants Ron

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Jensen and Ron Jensen Construction have filed no answer to the complaint, though Ron Jensen

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did file a notice declining magistrate judge jurisdiction. Doc. 16. Pinzon also made a motion for

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entry of default judgment against Ron Jensen and Ron Jensen Construction under Fed. Rule Civ.

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Proc. 55(b)(2). Doc. 36. Magistrate Judge Austin denied the motion without prejudice, noting

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that Pinzon had to first obtain an entry of default by the clerk’s office under Fed. Rule Civ. Proc.
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55(a). Doc. 38. Since that time, Pinzon has not sought an entry of default. Pinzon is proceeding

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pro se and sought to have counsel appointed by the court. Magistrate Judge Oberto denied

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Pinzon’s motion. Doc. 69. Pinzon sought reconsideration, which was denied. Doc. 75.

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Vaughn and Pinecrest Market made motions for summary judgment. Pinzon filed an

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opposition to Vaughn’s motion but no opposition to Pinecrest Market’s motion. The court found

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the opposition insufficient as it was not backed by evidence and granted him an additional

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opportunity to provide an opposition in light of his pro se status. Doc. 73. Pinzon did not do so,

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and the motions were taken under submission without oral argument. The court ultimately

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granted summary judgment in favor of both Vaughn and Pinecrest Market. Doc. 76.

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The court then required Pinzon to take action with respect to his outstanding claims

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against Ron Jensen and Ron Jensen Construction. Pinzon failed to do so and the first order to

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show cause why the case should not be dismissed for lack of prosecution was set for hearing on

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December 19, 2011. Pinzon appeared at the hearing and the court gave him additional time to

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pursue his case. Pinzon filed a new motion seeking to amend his complaint, renewing his request

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to have legal counsel assigned to him, and seeking reconsideration of the summary judgment.

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Docs. 83, 84, and 85. These orders were denied in February and March 2012. Docs. 87 and 88.

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A second order to show cause was set for hearing on March 4, 2013. Doc. 89. Plaintiff

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again filed a written response. Doc. 91. The court vacated the hearing and listed out options on

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how he could proceed in this case. Doc. 92. Pinzon made a premature appeal to the Ninth Circuit

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seeking review of order granting summary judgment to Vaughn and Pinecrest Market. Doc. 95.

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The Ninth Circuit declined to hear the appeal for lack of jurisdiction. Doc. 102. As Pinzon’s

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claims against Ron Jenson and Ron Jensen Construction are pending, final judgment against

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Vaughn and Pinecrest Market has not yet issued.

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A third order to show cause was set for hearing on June 3, 2013. Doc. 101. Pinzon filed a

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written response. Doc. 103. This court issued an order vacating the order to show cause and told

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Pinzon that he had 21 days to either seek entry of default or to dismiss his claims; he was

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specifically warned that if he failed to comply, his claims would be dismissed for failure to

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prosecute without further notice. Doc. 105. Pinzon did not make any filing within 21 days and
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instead filed a second premature appeal to the Ninth Circuit. Doc. 106. The Ninth Circuit again

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declined to hear the appeal for lack of jurisdiction. Doc. 111.

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II. Legal Standards

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A court may dismiss an action based on a party’s failure to prosecute an action or failure

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to obey a court order. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). In

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determining whether to dismiss this action for failure to comply with the directives set forth in its

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order, “the Court must weigh the following factors: (1) the public’s interest in expeditious

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resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to

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defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy

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favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.

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2002), citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). “These factors are ‘not

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a series of conditions precedent before the judge can do anything,’ but a ‘way for a district judge

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to think about what to do.’” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460

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F.3d 1217, 1226 (9th Cir. 2006), quoting Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051,

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1057 (9th Cir. 1998).

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III. Discussion

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Weighing the relevant factors, the court finds dismissal of claims against Ron Jensen and

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Ron Jensen construction for lack of prosecution appropriate. This case has lingered since August

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2011 without any forward progress. Pinzon has repeatedly ignored the court’s guidance in trying

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to shepherd him through the litigation process. Repeated orders to show cause are the result.

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While dealing with a case on the merits is preferred, default judgment does not provide a full

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vehicle for that end. See Global Naps, Inc. v. Verizon New Eng. Inc., 603 F.3d 71, 95 (1st Cir.

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2010) (“default judgment generally is not a judgment on the merits”); Weiss v. St. Paul Fire &

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Marine Ins. Co., 283 F.3d 790, 795 (6th Cir. 2002) (favoring “trial on the merits” over default

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judgment). Dismissal of claims against Ron Jensen and Ron Jensen Construction should not

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prejudice any of the Defendants in any way. “[D]istrict judges have an obligation to warn the
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plaintiff that dismissal is imminent.” Johnson v. United States Dep’t of Treasury, 939 F.2d 820,

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823 (9th Cir. 1991), citations omitted. In the prior order, Pinzon was specifically warned that “If

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Pinzon fails to make an appropriate filing [within 21 days], this case will be dismissed for failure

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to prosecute without further notice.” Doc. 105, May 31, 2013 Order, 3:10-12.
Given his two premature appeals, it is evident that Pinzon no longer seeks to proceed

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before the district court and wishes to be heard by the Ninth Circuit. The court has granted

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summary judgment to Vaughn and Pinecrest Market. Pinzon wishes to appeal that order, but can

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not do so until his claims against Ron Jensen and Ron Jensen Construction are resolved. Pinzon

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is unwilling to procure a default judgment under Fed. Rule Civ. Proc. 41(a)(1)(A)(i). Dismissal

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of Pinzon’s claims against Ron Jensen and Ron Jensen Construction for lack of prosecution may

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be the best way to effectuate Pinzon’s desire.

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IV. Order

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Accordingly, judgment is entered in favor of Defendants Vaughn and Pinecrest Market.

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Pinzon’s claims against Ron Jensen and Ron Jensen Construction are DISMISSED with

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prejudice for Pinzon’s failure to prosecute. The Clerk of the Court is DIRECTED to close the

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case.

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IT IS SO ORDERED.

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Dated:
0m8i78

September 19, 2013
SENIOR DISTRICT JUDGE

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