Seifert v. Werner

Filing 159

ORDER signed by Judge Kimberly J. Mueller on 11/12/14 ORDERING that Plaintiff's claims are DISMISSED with prejudice. This Case is CLOSED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KATHLEEN SEIFERT,

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Plaintiff,

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No. 2:08-CV-0998 KJM CKD

v.

ORDER

RICHARD K. WERNER,

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Defendant.

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On January 23, 2009, this case was stayed because it was subject to arbitration.

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ECF No. 80. Although plaintiff filed a series of motions challenging various aspects of the

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arbitration process, the court returned the case to arbitration. See, e.g., ECF Nos. 87, 90, 102,

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112, 120, 128, 132, 141, 142, 149.
On October 31, 2013, the court ordered the parties to file a joint status report. On

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November 14, 2013 defendant filed a status report, stating that the arbitration had been completed

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in November 2012. Plaintiff did not respond to the court’s order.
On July 22, 2014, the court issued an order directing plaintiff to show cause why

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this action should not be dismissed for her failure to prosecute. She did not respond to the court’s

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order.

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Under Rule 41(b) of the Federal Rules of Civil Procedure, a court may dismiss an
action if a plaintiff fails to prosecute. A 41(b) dismissal “‘must be supported by a showing of
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unreasonable delay.’” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting

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Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). Plaintiff has done nothing on this

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case between November 2012, when the arbitrator issued his decision, and the present time, a

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period of unreasonable delay.

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Prior to dismissing for failure to prosecute under Rule 41(b), the court must

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consider the factors outlined in Henderson namely: “(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 the

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defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the

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availability of less drastic sanctions.” 779 F.2d at 1423. “The district court has the inherent power

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sua sponte to dismiss a case for lack of prosecution.” Id.

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First, the public has an interest in expeditious resolution of litigation. Here, it

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appears the dispute has been resolved in arbitration, but plaintiff has done nothing to dismiss or

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even acknowledge the pendency of this action. Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th

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Cir. 1999) (“[T]he public's interest in expeditious resolution of litigation always favors

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dismissal.”). Plaintiff’s refusal to do anything in this case after the conclusion of arbitration

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supports dismissal.

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Second, plaintiff's delays have interfered with management of this court's docket:

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plaintiff’s failure to notify the court of the results of the arbitration proceedings and to respond to

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the court’s order has required the court to act to determine the posture of the proceedings. See

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Yourish, 191 F.3d at 990 (finding the district court's interest in managing its docket strongly

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favored dismissal). This second factor also weighs in favor of dismissal.

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The third factor does not favor dismissal, as defendant has not been prejudiced by
plaintiff's failure to act, at least after the case was returned to arbitration.

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Regarding the fourth factor, as the Ninth Circuit explained in Morris v. Morgan

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Stanley & Co., “[a]lthough there is indeed a policy favoring disposition on the merits, it is the

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responsibility of the moving party to move towards that disposition at a reasonable pace, and to

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refrain from dilatory and evasive tactics.” 942 F.2d 648, 652 (9th Cir. 1991). The court finds

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this factor to favor dismissal, as plaintiff has done nothing following the conclusion of the

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arbitration proceedings.

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As for the fifth and final factor, “[t]he district court need not exhaust every

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sanction short of dismissal before finally dismissing a case, but must explore possible and

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meaningful alternatives.” Henderson, 779 F.2d at 1424 (citing Nevijel v. North Coast Life Ins.

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Co., 651 F.2d 671, 674 (9th Cir.1981)). “[L]ess drastic alternatives include allowing further

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amended complaints, allowing additional time, or insisting that appellant associate experienced

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counsel.” Nevijel, 651 F.2d at 674. In this case plaintiff has not responded to the court’s order of

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October 31, 2013 asking for a status report or its order of July 22, 2014 directing her to show

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cause. Plaintiff’s refusal to respond to the court justifies dismissal.
Henderson factors one, two, four and five weigh in favor of the sanction of

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dismissal with prejudice, while factor three does not. Plaintiff's claims are therefore DISMISSED

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with prejudice. This case is closed.

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IT IS SO ORDERED.
DATED: November 12, 2014.

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UNITED STATES DISTRICT JUDGE

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