Winding v. Allstate

Filing 192

ORDER signed by Judge Kimberly J. Mueller on 12/16/2014 DISMISSING CASE; INSTRUCTING the Clerk of Court to enter default against Plaintiff Jacob Winding on 42 Counterclaim; DIRECTING the defendant to apply to the assigned magistrate judge for a default judgment under F.R.Cv.P. Rule 55(b)(2) and Local Rule 302(c)(19) within thirty days. (Michel, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JACOB WINDING,
Plaintiff,

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No. 2:09-cv-3526-KJM-KJN

v.

ORDER TO SHOW CAUSE

ALLSTATE INSURANCE COMPANY
and DOES 1-25, inclusive,

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Defendants.
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I. BACKGROUND

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On November 14, 2014, the court ordered the plaintiff, Jacob Winding, appearing

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pro se, to show cause why this action should not be dismissed for lack of prosecution and default

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entered as to the counterclaim against him. Order 3-4, ECF No. 189. The court required a

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response within fourteen days. Id. Mr. Winding responded to the court’s order on December 4,

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2014, twenty days later. Resp. Order Show Cause, ECF No. 190. In his response Mr. Winding

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purports to address the court’s request for “further documentation of Plaintiff’s physical

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constraints.” Id. at 1. He attaches a letter from Christopher Schlenger, Doctor of Chiropractic,

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describing Mr. Winding’s spinal discomfort and ongoing treatment, and recommending a 90 day

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continuance. Id. Ex. A. In his December 4 filing, Mr. Winding also reiterated his request for

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more time to seek new counsel. Id. at 2.
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In its order of November 14, 2014, the court described several instances of Mr.

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Winding’s inaction in this matter. See Order 1-2, ECF No. 189. In brief, despite multiple

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continuances, Mr. Winding has not identified exhibits and witnesses for trial, did not submit a

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pretrial statement, did not comply with the requirements of Rule 26 regarding disclosure of expert

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witnesses and testimony, did not attend the pretrial conference, and did not accept an offer to be

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represented without charge by a qualified member of this court’s pro bono panel of experienced

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attorneys. Id. The court did not request further documentation of any physical constraints, but

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did require Mr. Winding to “show cause why the facts and authorities [in the order to show cause]

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do not warrant dismissal of his claims for lack of prosecution and entry of default as to Allstate’s

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counterclaim.” Id. at 4.

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Also in the November 14, 2014 order, the court described the Local Rules, this

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court’s previous scheduling orders, and relevant case law it considers when deciding whether to

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dismiss or enter default sua sponte. Id. at 2-3. For the sake of clarity, the court reprises this

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discussion briefly below:

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

A person appearing without an attorney must attend hearings and trial and may not

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delegate the duty to appear to any other person. E.D. Cal. L. R. 183(a). Failure to comply

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with these rules may result in “dismissal, judgment by default, or any other sanction

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appropriate under these rules.” Id.

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On August 14, 2014, the court issued an order requiring the parties submit a joint pretrial

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conference statement by October 23, 2014. Order 1-2, ECF No. 177. Local Rules

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281(b)(10) and (b)(11) require disclosure of exhibits and witnesses for trial. The August

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14 order warned the parties, “Failure to comply with Local Rule 281, as modified by this

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order, may be grounds for sanctions.” Order 3, ECF No. 177.

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

“District courts have inherent power to control their dockets. In the exercise of that power

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they may impose sanctions including, where appropriate, default or dismissal.” Thompson

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v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986) (citing Link v.

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Wabash Railroad Co., 370 U.S. 626 (1961)). Sua sponte dismissal for failure to prosecute

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/////
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is a decision within this court’s discretion. Oliva v. Sullivan, 958 F.2d 272, 273 (9th Cir.

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1992).

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

Whether dismissal is appropriate depends on application of several factors: “(1) the

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public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its

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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring

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disposition of cases on their merits[;] and (5) the availability of less drastic sanctions.”

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Thompson, 782 F.2d at 831.

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

Federal Rule of Civil Procedure 55 governs entry of default and default judgment. It

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provides that the clerk must enter a party’s default if that party “has failed to plead or

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otherwise defend, and that failure is shown by affidavit or otherwise.” Fed. R. Civ. P.

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55(a).

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

Whether default is an appropriate sanction depends on the same five factors listed above.

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See Thompson, 782 F.2d at 831; Hingano v. Channing & Associates, LLC, No. 09-1881,

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2010 WL 55891, at *2 (E.D. Cal. Jan. 4, 2010).

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Mr. Winding’s disregard of the Local Rules and this court’s orders warrants

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dismissal and entry of default in favor of the defendant on its counterclaim. Plaintiff has not

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responded in substance to the court’s order to show why dismissal and entry of default are not

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appropriate sanctions. He has not addressed any of the authorities identified above. Despite his

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assertion of intent to seek counsel, Mr. Winding did not respond to the offer of representation

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from a member of the court’s pro bono panel.

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Each of the four factors listed in Thompson also favors dismissal and entry of

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default: (1) repeated continuances have prolonged this litigation and have not led to a resolution;

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(2) Mr. Winding’s failure to appear, list witnesses and exhibits, and respond to the court’s efforts

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to secure pro bono representation have resulted in unnecessary expenditures of time and effort by

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the defendant and the court, and demonstrate his lack of intent to prosecute his case; (3) dismissal

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and entry of default risks no prejudice to the defendant, whose counsel at the pretrial conference

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described how, to the contrary, Mr. Winding’s inaction has hampered the defense’s ability to

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prepare for trial; (4) resolution on the merits of Mr. Winding’s claims is unlikely whether the case
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is dismissed or not, because even were a trial to go forward, Mr. Winding has identified no

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exhibits or witnesses, and (5) the court has, as described above, offered a number of alternatives

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to dismissal without success.

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Finally, while the court is not unsympathetic to any physical limitations Mr.

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Winding may be experiencing, the limited information he has provided does not allow the court

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to conclude he is rendered unable to provide timely responses to the court’s orders and inquiries,

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or communicate with the counsel the court was prepared to appoint to represent him. In

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summary, nothing before the court supports the conclusion that a continuance or rescheduled trial

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would lead to resolution on the merits. The court therefore ORDERS as follows:

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(1) The case is DISMISSED;

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(2) The Clerk of the Court is instructed to enter DEFAULT against Mr. Winding

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on defendant’s counterclaim;
(3) The defendant shall apply to the assigned magistrate judge for a default

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judgment under Federal Rule of Civil Procedure 55(b)(2) and Local Rule 302(c)(19) no later than

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thirty days from the issuance of this order.

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IT IS SO ORDERED.
DATED: December 16, 2014.

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UNITED STATES DISTRICT JUDGE

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