U.S. Equal Employment Opportunity Commission v. Central California Foundation for Health et al

Filing 88

ORDER DISMISSING Plaintiff Venus Pagsuberon signed by District Judge Lawrence J. O'Neill on 7/10/2012. CASE CLOSED. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

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CASE NO. 1:10-cv-01492-LJO-JLT

Plaintiff,

ORDER DISMISSING PLAINTIFF
VENUS PAGSUBERON

and
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DOUGLAS ABDON, et al.,
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Plaintiff-Intervenors,
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vs.
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CENTRAL CALIFORNIA FOUNDATION
FOR HEALTH, et al.,

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Defendants.
/

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BACKGROUND

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On August 18, 2010, the U.S. Equal Employment Opportunity Commission (“EEOC”) filed suit

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against Central California Foundation for Health d/b/a Delano Regional Medical Center (“DRMC”) and

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Delano Health Associates, Inc. (“DHA”).1 (Doc. 1). Fifty-two individual hospital staff members,

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represented by the Asian Pacific American Legal Center (“APALC”), intervened.2 (Doc. 16). On March

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DRMC and DHA will be referred to collectively as “defendants.”

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Nine of the plaintiff-intervenors eventually voluntarily dismissed their claims. (Docs. 39, 77, 78).

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14, 2012, the APALC filed a motion to withdraw as counsel of record for Venus Pagsuberon (“Ms.

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Pagsuberon”). (Doc. 43). The motion was based on Ms. Pagsuberon’s failure to cooperate with counsel

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despite counsel’s repeated efforts to contact her. A declaration submitted by counsel provides that from

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October 2011 to December 2011, counsel left four messages and made three written attempts to

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communicate with Ms. Pagsuberon, all to no avail. (Doc. 43-1, ¶ 7-8). In December 2011, counsel sent

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a final letter to Ms. Pagsuberon which notified her that the APALC would be taking steps to withdraw

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as her attorney. (Doc. 43-2, p. 4). On April 19, 2012, Magistrate Judge Thurston granted APALC’s

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motion to withdraw. (Doc. 49).

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On June 22, 2012, the EEOC, plaintiff-intervenors represented by the APALC, and defendants

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filed a notice of settlement. (Doc. 81). Ms. Pagsuberon did not participate in the settlement. As a result,

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this Court ordered Ms. Pagsuberon, no later than July 6, 2012, to file and serve papers to show good

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cause why this Court should not dismiss her claims for failure to prosecute. (Doc. 85). The order

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explicitly stated that, “This Court ADMONISHES Ms. Pagsuberon that this Court will dismiss her

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claims and this action if Ms. Pagsuberon fails to respond to this order.” (Doc. 85) (bold in original).

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Ms. Pagsuberon did not respond to the order.

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DISCUSSION

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It is well established that a district court has the authority to dismiss a plaintiff’s action because

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of his or her failure to prosecute or to comply with court orders. See Link v. Wabash R. Co., 370 U.S.

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626, 629-30 (1962) (the court’s authority to dismiss for failure to prosecute is necessary in order to

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prevent undue delays in the disposition of pending cases and to avoid congestion in district court

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calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.) (recognizing that the district court may

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dismiss an action for failure to comply with a court order), cert. denied, 506 U.S. 915 (1992).

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In determining whether to dismiss a case for failure to prosecute or to comply with court orders,

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a court must consider five factors: (1) the public’s interest in expeditious resolution of litigation; (2) the

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court’s need to manage its docket; (3) the risk of prejudice to defendant; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of less drastic alternatives. See In re Eisen,

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31 F.3d 1447, 1451 (9th Cir. 1994) (failure to prosecute); Ferdik, 963 F.2d at 1260-61 (failure to comply

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with court orders).
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In this case, the public’s interest in expeditiously resolving this litigation and the Court’s interest

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in managing its docket weigh in favor of dismissal. Ms. Pagsuberon has failed to file any documents

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related to this action and has failed to respond to the Court’s order to show cause why this action should

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not be dismissed for failure to prosecute. Ms. Pagsuberon’s inaction indicates a lack of interest in

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prosecuting this case. The third factor, the risk of prejudice to defendant, also weighs in favor of

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dismissal because “[t]he law presumes injury from unreasonable delay.” In re Eisen, 31 F.3d at 1452

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(quoting Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976)). This presumption may be

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rebutted “if there is a showing that no actual prejudice occurred.” Id. at 1452-53. However, Ms.

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Pagsuberon offers no excuse or reason for the delay. The fourth factor – public policy favoring

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disposition of cases on their merits – does not outweigh Ms. Pagsuberon failure to file any documents

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related to this action nor her failure to respond to the Court’s order to show cause. Finally, a “court’s

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warning to a party that his failure to obey the court’s order will result in dismissal can satisfy the

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‘consideration of alternatives’ requirement.” Ferdik, 963 F.2d at 1262 (quoting Malone v. United States

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Postal Serv., 833 F.2d 128, 132-33 (9th Cir. 1987)). The order to show cause filed on June 22, 2012,

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ordered Ms. Pagsuberon “to file and serve papers to show good cause why this Court should not dismiss

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her claims for failure to prosecute them in this action.” (Doc. 85). The order further stated, “This Court

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ADMONISHES Ms. Pagsuberon that this Court will dismiss her claims and this action if Ms.

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Pagsuberon fails to respond to this order.” (Doc. 85) (bold in original). Ms. Pagsuberon failed to

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respond to the order despite this warning. Accordingly, the “consideration of alternatives” requirement

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is satisfied. Id.

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In sum, the above factors weigh in favor of dismissal for failure to prosecute.

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CONCLUSION AND ORDER

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For the reasons discussed above, this Court:

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DISMISSES without prejudice Ms. Pagsuberon’s claims for failure to prosecute; and

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DIRECTS the clerk to enter judgment in favor of defendants and against plaintiff Venus

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Pagsuberon and to close this action.

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IT IS SO ORDERED.
Dated:

July 10, 2012

/s/ Lawrence J. O'Neill
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66h44d

UNITED STATES DISTRICT JUDGE

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