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)

Download PDF
1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 7 8 9 10 11 12 13 ABRAHAM G. PINZON, ) ) Plaintiff, ) ) v. ) ) RON JENSEN, RON JENSEN ) CONSTRUCTION, PINECREST ) MARKET, DAN VAUGHN, and DOES 1- ) 50, ) ) Defendants. ) ____________________________________ ) CIV-F-08-1543 AWI SKO ORDER DISMISSING CASE FOR LACK OF PROSECUTION 14 15 I. History 16 Defendant Dan Vaughn was renovating his house. Defendant Ron Jensen was the 17 general contractor on the project. In July 2006, Vaughn hired Plaintiff Abraham Pinzon to do tile 18 work as part of the renovation. Vaughn paid Pinzon weekly, often taking money from the cash 19 register at Defendant Pinecrest Market where Vaughn was the part owner/general manager. On 20 October 10, 2006, Vaughn fired Pinzon. Pinzon alleges that Vaughn did not pay him his full 21 wages and further made threatening/racially charged remarks. 22 Pinzon first filed suit in small claims court. The court found for Defendants. Pinzon then 23 filed suit in the Eastern District of California, alleging racial discrimination. Defendants Ron 24 Jensen and Ron Jensen Construction have filed no answer to the complaint, though Ron Jensen 25 did file a notice declining magistrate judge jurisdiction. Doc. 16. Pinzon also made a motion for 26 entry of default judgment against Ron Jensen and Ron Jensen Construction under Fed. Rule Civ. 27 Proc. 55(b)(2). Doc. 36. Magistrate Judge Austin denied the motion without prejudice, noting 28 that Pinzon had to first obtain an entry of default by the clerk’s office under Fed. Rule Civ. Proc. 1 1 55(a). Doc. 38. Since that time, Pinzon has not sought an entry of default. Pinzon is proceeding 2 pro se and sought to have counsel appointed by the court. Magistrate Judge Oberto denied 3 Pinzon’s motion. Doc. 69. Pinzon sought reconsideration, which was denied. Doc. 75. 4 Vaughn and Pinecrest Market made motions for summary judgment. Pinzon filed an 5 opposition to Vaughn’s motion but no opposition to Pinecrest Market’s motion. The court found 6 the opposition insufficient as it was not backed by evidence and granted him an additional 7 opportunity to provide an opposition in light of his pro se status. Doc. 73. Pinzon did not do so, 8 and the motions were taken under submission without oral argument. The court ultimately 9 granted summary judgment in favor of both Vaughn and Pinecrest Market. Doc. 76. 10 The court then required Pinzon to take action with respect to his outstanding claims 11 against Ron Jensen and Ron Jensen Construction. Pinzon failed to do so and the first order to 12 show cause why the case should not be dismissed for lack of prosecution was set for hearing on 13 December 19, 2011. Pinzon appeared at the hearing and the court gave him additional time to 14 pursue his case. Pinzon filed a new motion seeking to amend his complaint, renewing his request 15 to have legal counsel assigned to him, and seeking reconsideration of the summary judgment. 16 Docs. 83, 84, and 85. These orders were denied in February and March 2012. Docs. 87 and 88. 17 A second order to show cause was set for hearing on March 4, 2013. Doc. 89. Plaintiff 18 again filed a written response. Doc. 91. The court vacated the hearing and listed out options on 19 how he could proceed in this case. Doc. 92. Pinzon made a premature appeal to the Ninth Circuit 20 seeking review of order granting summary judgment to Vaughn and Pinecrest Market. Doc. 95. 21 The Ninth Circuit declined to hear the appeal for lack of jurisdiction. Doc. 102. As Pinzon’s 22 claims against Ron Jenson and Ron Jensen Construction are pending, final judgment against 23 Vaughn and Pinecrest Market has not yet issued. 24 A third order to show cause was set for hearing on June 3, 2013. Doc. 101. Pinzon filed a 25 written response. Doc. 103. This court issued an order vacating the order to show cause and told 26 Pinzon that he had 21 days to either seek entry of default or to dismiss his claims; he was 27 specifically warned that if he failed to comply, his claims would be dismissed for failure to 28 prosecute without further notice. Doc. 105. Pinzon did not make any filing within 21 days and 2 1 instead filed a second premature appeal to the Ninth Circuit. Doc. 106. The Ninth Circuit again 2 declined to hear the appeal for lack of jurisdiction. Doc. 111. 3 II. Legal Standards 4 5 A court may dismiss an action based on a party’s failure to prosecute an action or failure 6 to obey a court order. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). In 7 determining whether to dismiss this action for failure to comply with the directives set forth in its 8 order, “the Court must weigh the following factors: (1) the public’s interest in expeditious 9 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 10 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy 11 favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 12 2002), citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). “These factors are ‘not 13 a series of conditions precedent before the judge can do anything,’ but a ‘way for a district judge 14 to think about what to do.’” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 15 F.3d 1217, 1226 (9th Cir. 2006), quoting Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 16 1057 (9th Cir. 1998). 17 18 III. Discussion 19 Weighing the relevant factors, the court finds dismissal of claims against Ron Jensen and 20 Ron Jensen construction for lack of prosecution appropriate. This case has lingered since August 21 2011 without any forward progress. Pinzon has repeatedly ignored the court’s guidance in trying 22 to shepherd him through the litigation process. Repeated orders to show cause are the result. 23 While dealing with a case on the merits is preferred, default judgment does not provide a full 24 vehicle for that end. See Global Naps, Inc. v. Verizon New Eng. Inc., 603 F.3d 71, 95 (1st Cir. 25 2010) (“default judgment generally is not a judgment on the merits”); Weiss v. St. Paul Fire & 26 Marine Ins. Co., 283 F.3d 790, 795 (6th Cir. 2002) (favoring “trial on the merits” over default 27 judgment). Dismissal of claims against Ron Jensen and Ron Jensen Construction should not 28 prejudice any of the Defendants in any way. “[D]istrict judges have an obligation to warn the 3 1 plaintiff that dismissal is imminent.” Johnson v. United States Dep’t of Treasury, 939 F.2d 820, 2 823 (9th Cir. 1991), citations omitted. In the prior order, Pinzon was specifically warned that “If 3 Pinzon fails to make an appropriate filing [within 21 days], this case will be dismissed for failure 4 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 5 6 before the district court and wishes to be heard by the Ninth Circuit. The court has granted 7 summary judgment to Vaughn and Pinecrest Market. Pinzon wishes to appeal that order, but can 8 not do so until his claims against Ron Jensen and Ron Jensen Construction are resolved. Pinzon 9 is unwilling to procure a default judgment under Fed. Rule Civ. Proc. 41(a)(1)(A)(i). Dismissal 10 of Pinzon’s claims against Ron Jensen and Ron Jensen Construction for lack of prosecution may 11 be the best way to effectuate Pinzon’s desire. 12 IV. Order 13 Accordingly, judgment is entered in favor of Defendants Vaughn and Pinecrest Market. 14 15 Pinzon’s claims against Ron Jensen and Ron Jensen Construction are DISMISSED with 16 prejudice for Pinzon’s failure to prosecute. The Clerk of the Court is DIRECTED to close the 17 case. 18 IT IS SO ORDERED. 19 20 Dated: 0m8i78 September 19, 2013 SENIOR DISTRICT JUDGE 21 22 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?