Ellis v. Checkmate Staffing, et al

Filing 120

ORDER DISMISSING ALL CLAIMS for Failure to Prosecute signed by Judge John A. Mendez on 1/23/2015 ORDERING Because the above described five factors favor dismissal, the Court DISMISSES this action with prejudice due to Plaintiff' failure to diligently prosecute. The Court directs the clerk to close this action.CASE CLOSED (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHEILA ELLIS,

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No.

2:02-cv-00129 JAM-CKD

Plaintiff,
v.

ORDER DISMISSING ALL CLAIMS
FOR FAILURE TO PROSECUTE

CHECKMATE STAFFING, INC. dba
CHECKMATE, CHECKMATE STAFFING,
and CHECKMATE STAFFING
SOLUTIONS; CHECKMATE STAFFING
NATIONAL, INC., dba CHECKMATE,
CHECKMATE STAFFING, and
CHECKMATE STAFFING SOLUTIONS;
CHECKMATE STAFFING WEST, INC.,
dba CHECKMATE, CHECKMATE
STAFFING, and CHECKMATE STAFFING
SOLUTIONS; CHECKMATE STAFFING
EAST, INC., dba CHECKMATE,
CHECKMATE STAFFING, and
CHECKMATE STAFFING SOLUTIONS;
STAFFAIDE, INC., dba CHECKMATE,
CHECKMATE STAFFING, AND
CHECKMATE STAFFING SOLUTIONS,
LOU E. PEREZ, individually and
collectively doing business as
CHECKMATE STAFFING NATIONAL,
INC., dba CHECKMATE STAFFING
WEST, INC., CHECKMATE STAFFING
EAST, INC., CHECKMATE STAFFING
INC., STAFFAIDE, INC.,
CHECKMATE, CHECKMATE STAFFING,
and CHECKMATE STAFFING
SOLUTIONS,
Defendants.

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This case arises from discrimination allegedly suffered by

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Plaintiff Sheila Ellis (“Plaintiff”) during her short-lived

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employment with Checkmate Staffing and Lou Perez (collectively,

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“Defendants”).

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been dormant for most of the past decade.

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below, the Court dismisses this action for failure to prosecute.

Originally filed in January 2002, the case has
For the reasons stated

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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiff worked for Defendant for a single month in 2001.

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In 2002, she filed suit claiming that her employer discriminated

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against her by preferring Hispanic workers to Caucasians like

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Plaintiff.

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summary judgment in 2003.

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“Checkmate Staffing” Defendants entered bankruptcy and a stay

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issued.

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that the claims against [Defendant] Perez are subject to the

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automatic stay[,]” and ordered that “[o]nce the stay is lifted, a

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document shall be filed notifying this Court within ten days.”

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Doc. #100.

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See Doc. #64.

See Doc. #99.

The case proceeded to denial of
See Doc. #95.

Soon thereafter, all

The Court noted that “[t]he parties agree

The bankruptcy case finally resolved in 2008 and the

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bankruptcy court issued a Notice of Dismissal.

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Response (Doc. #119) Exh. A.

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further.

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Defendants’

But this case progressed no

In October 2014, the Court issued an order to show cause why

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the matter should not be dismissed for lack of prosecution.

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Doc. #113.

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ordered a hearing on the matter.

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///

The parties responded in writing and the Court
See Doc. ##114-117.

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See

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At the January 14, 2015 hearing, Plaintiff’s attorney failed

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to appear.

Instead, a different lawyer made a special

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appearance, representing that she worked with a third lawyer who

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was at that time in trial in a different matter with Plaintiff’s

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counsel.

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dismiss the case for lack of prosecution based on the protracted

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history of the case and the written responses to the order to

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show cause.

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respond, ordering the parties to submit “briefing of no more than

The Court cautioned the parties that it was inclined to

But the Court gave the parties one final chance to

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10 pages due on or before 1/21/2015 relative to the Court’s

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ability to dismiss this action for lack of prosecution.”

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#118.

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Doc.

Defendants complied with the Court’s order by filing

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briefing arguing that the Court should dismiss the action.

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Doc. #119.

See

Plaintiff filed nothing.

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II.

OPINION

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A.

Legal Standard

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A court may dismiss an action if “the plaintiff fails to

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prosecute or to comply with . . . a court order.”

Fed. R. Civ.

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P. 41(b); Hernandez v. City of El Monte, 138 F.3d 393, 400 (9th

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Cir. 1998).

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dismissal is warranted: “(1) the public’s interest in

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expeditious resolution of the litigation; (2) the court’s need

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to manage its docket; (3) the risk of prejudice to the

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defendants; (4) the public policy favoring the disposition of

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cases on their merits; and (5) the availability of less drastic

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sanctions.”

The court weighs five factors to determine if

In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994)
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(citations omitted).

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B.

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Discussion
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Expeditious Resolution of Litigation

This factor always weighs in favor of dismissal.

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Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002)

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(citation omitted).

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Plaintiff’s case has been inactive for over a decade.

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2.

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It is especially strong here where

Docket Management

This district has one of the busiest dockets in the

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country.

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(E.D. Cal. Nov. 27, 2013) (recommending dismissal for failure to

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prosecute in part because “the Eastern District of California is

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one of the busiest federal jurisdictions in the United States

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and its District Judges carry the heaviest caseloads in the

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nation”).

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supports dismissal.

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Mead v. Multi-Chem Grp., LLC, 2013 WL 6198940, at *2

The need to manage this Court’s docket therefore

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Risk of Prejudice to Defendants

Delay alone creates a presumption of prejudice.

Nealey v.

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Transportation Maritima Mexicana, S.A., 662 F.2d 1275, 1280 (9th

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Cir. 1980).

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excuse for his delay that is anything but frivolous, the burden

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shifts to the defendant to show at least some actual prejudice.

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Id.

But “where a plaintiff has come forth with an

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Here, Plaintiff’s only excuse – an excuse dating back to

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2010 – is that her lawyer failed to realize the resolution of

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bankruptcy and other related litigation due to an “oversight.”

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See Plaintiff’s July 2010 Response to Order to Show Cause (Doc.

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#114) ¶ 10; see also id. (“I[,] [Plaintiff’s attorney,] should
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have been more proactive in following up . . . .”).

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is insufficient.

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to credit plaintiff’s excuse for delay that he had “insufficient

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funds to proceed with discovery” and his attorney was “unable or

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unwilling to advance the costs of such discovery”).

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to comply with the Court’s January 14, 2015 order to submit

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briefing, Plaintiff has declined to offer any further excuse.

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This excuse

See In re Eisen, 31 F.3d at 1451-52 (declining

By failing

Even if Plaintiff’s excuse were valid, Defendants have
demonstrated actual prejudice by loss of evidence.

See

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Defendants’ Response at 3.

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in this action took place over thirteen years ago, so witnesses’

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memories have faded.

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deposed.”

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for years so they do not “have control of [their] former

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employees” – many of whom appear on the parties’ witness lists,

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see id. Exh. B at 8-10 – “who could be anywhere.”

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“Many, if not most [] witnesses were never

Id. at 3:27.

Defendants have been out of business

Id. at 3:24-

This factor therefore favors dismissal.

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In particular, the relevant events

4.

Public Policy Favoring Resolution on the Merits

In assessing this factor, the Court may consider

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Plaintiff’s showing, if any, that the case is “likely to be

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resolved in [her] favor.”

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Plaintiff has declined to make any such showing by failing to

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submit briefing.

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resolution on the merits, this factor does not weigh heavily in

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this case.

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5.

In re Eisen, 31 F.3d at 1454.

Here,

Therefore, despite the general policy favoring

Availability of Less Drastic Sanctions

The Court has repeatedly warned the parties of the
possibility of dismissal for failure to prosecute.
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The Court can

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envision no less drastic yet effective sanction after so many

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warnings and so much unwarranted delay.

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no suggestions, and Plaintiff has even failed to comply with the

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Court’s order to submit briefing on the matter.

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Sharp Electronics Corp., 561 F. App’x 591, 595 (9th Cir. Mar. 6,

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2014) (“[G]iven the complete failure of Valencia’s attorney to

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respond to the court’s directions, there were no less drastic

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measures available.”).

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dismissal.

The parties have offered

See Valencia v.

This factor therefore tends towards

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III.

ORDER

Because the above described five factors favor dismissal,

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the Court dismisses this action with prejudice due to Plaintiff’s

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failure to diligently prosecute.

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close this action.

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The Court directs the clerk to

IT IS SO ORDERED.
Dated: January 23, 2015

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