Johnson v. McCulley et al

Filing 46

ORDER signed by Judge Kimberly J. Mueller on 10/29/2013 ORDERING Plaintiff's claims are therefore DISMISSED with Prejudice. CASE CLOSED (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SCOTT N. JOHNSON,

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No. 2:11-CV-2215 KJM EFB

Plaintiff,
v.

ORDER

KRITAEN McCULLEY, et al.,
Defendants.

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On August 22, 2011, plaintiff filed a complaint alleging violations of the

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Americans With Disabilities Act, 42 U.S.C. §§ 12101, et seq., and California Civil Code §§ 51(f)

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and 52 against Kritaen McCulley, dba Green Jade Massage Therapy; Sonia Adams, dba

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Mrs. Sara; Vinod Sharma, Rajminder Sharma, Om Kapoor and Anjana Kapoor. ECF No. 1.

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Between September 27 and November 23, 2011, plaintiff filed proof that the

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summons and complaint had been served on McCulley, Adams, Vinod Sharma, Anjana Kapoor,

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Om Kapoor and Rajminder Sharma. ECF Nos. 5, 6, 9, 12, 13. On plaintiff’s request, the clerk

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entered defaults as to all the defendants. ECF Nos. 8, 11.

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On January 20, 2012, plaintiff filed a motion for default judgment as to all

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defendants. ECF No. 18. Defendants McCulley and Adams appeared at the hearing before the

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magistrate judge, who set aside the default as to these two defendants, gave them time to answer,

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and denied the motion for default judgment without prejudice. ECF Nos. 19, 20. Although the
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docket reflects that the clerk modified the entry of default to set it aside entirely, that action went

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beyond the scope of the magistrate judge’s order. See ECF 8. Defendants McCulley and Adams

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filed answers on March 30, 2012. ECF Nos. 21, 22. Thereafter this court referred the case to the

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magistrate judge, who held a pretrial scheduling conference on August 29, 2012. ECF No. 35.

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The court set the case for trial on October 7, 2013. ECF No. 36.

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On June 27, 2013, plaintiff filed a notice of settlement, saying only that “the

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parties have settled this action.” ECF No. 37. On July 1, 2013, the magistrate judge directed the

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parties to file dispositional documents within thirty days. ECF No. 38.

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On August 1, 2013, plaintiff filed a request for an additional thirty days in which

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to file dispositional documents, saying only, “Plaintiff and Defendants are in the process of

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finalizing a settlement agreement and require longer than the 30 day grace period.” ECF No. 39.

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The court granted the request. ECF No. 40.

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On September 6, 2013, plaintiff filed an untimely request for a second extension of

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time, saying only that “Plaintiff has provided Defendants with a settlement agreement; however,

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Defendants require additional time to review the terms of the settlement agreement.” ECF

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No. 41.

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On September 20, 2013, this court issued an order directing plaintiff to show cause

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why this action should not be dismissed for failure to prosecute and to serve defendants. ECF

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No. 42. Plaintiff then filed proofs of service of the court’s order on defendants McCulley and

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Adams. ECF Nos. 43, 44.

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On September 27, 2013, plaintiff filed a response to the order to show cause,

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explaining that “[o]n June 27, 2013, the Plaintiff spoke with Defendant, Vinod Sharma, who

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stated the settlement is accepted, but the Defendants needed to decide who would handle each

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portion of the settlement agreement.” ECF No. 45 ¶ 3. Thereafter plaintiff mailed a copy of the

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settlement agreement to Vinod Sharma and talked to him on July 12. Id. ¶¶ 4-5. Plaintiff did not

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attempt to reach Vinod Sharma again until August 20, 2013, leaving a message. Id. ¶ 8. Not until

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after this court denied plaintiff’s request for a second extension did plaintiff again attempt to

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reach Vinod Sharma. Id. ¶ 11. On September 27, 2013, Vinod Sharma said he would accept full
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responsibility for the settlement and asked for a change to the settlement agreement. Id. ¶ 12.

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Plaintiff says he is in the process of circulating a stipulated dismissal, but provides no timeline for

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completion of settlement. Id. He has filed nothing in the nearly thirty days since responding to

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the order to show cause.

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Under Rule 41(b) of the Federal Rules of Civil Procedure, a court may dismiss an

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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)).

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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

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power 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,

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plaintiff has failed to secure a settlement apparently reached in June, making only periodic

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inquiries, prompted by deadlines, about the progress of the settlement. The first Henderson factor

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weighs in favor of dismissal.

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Second, plaintiff’s delays have interfered with management of this court’s docket.

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The court has expended judicial resources in addressing plaintiff’s requests for extensions of time

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and setting deadlines, which plaintiff has nevertheless ignored. See Yourish, 191 F.3d at 990

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(finding the district court’s interest in managing its docket strongly favored dismissal because

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“[p]laintiffs tardily filed their motion for a written order, requiring the district court to devote

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further time and resources to this matter rather than to the merits of an amended complaint.”).

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Moreover, plaintiff has not shown good cause for any of his extension requests, making no

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attempt to do so until the court issued the order to show cause. This second factor also weighs in

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favor of dismissal.

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The third factor does not necessarily favor dismissal, as plaintiff is pursuing

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settlement with a person who has never appeared in this action; dismissal will favor the two

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defendants who have appeared.

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

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Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991), “[a]lthough there is indeed a policy favoring

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disposition on the merits, it is the responsibility of the moving party to move towards that

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disposition at a reasonable pace, and to refrain from dilatory and evasive tactics.” The court finds

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this factor to favor dismissal. So far as the court can determine, plaintiff has done little to move

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this case toward a disposition on the merits. The court cannot tell from plaintiff’s documents

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whether he has reached a settlement with the two defendants who have appeared in the action, as

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his response to the order to show cause identifies the settling defendant as one against whom the

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clerk has entered default.

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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)). Given plaintiff’s failure to do anything but contact a

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single defaulted defendant about the settlement, and then generally only in response to a looming

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deadline, it is unclear what sanction apart from dismissal will adequately encourage plaintiff to

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prosecute his case responsibly, particularly in light of his law degree, membership in the

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California Bar, and substantial track record of litigating in this court. See Nevijel, 651 F.2d at 674

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(“less drastic alternatives include allowing further amended complaints, allowing additional time,

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or insisting that appellant associate experienced counsel”); Thompson v. Hous. Auth. of City of

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Los Angeles, 782 F.2d 829, 832 (9th Cir. 1986) (finding dismissal appropriate after the court

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granted several pretrial conference continuances, plaintiff was not prepared for the conferences,

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and plaintiff was warned that failure to be prepared would result in a dismissal). The court finds

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this factor also favors dismissal.

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III.

CONCLUSION
Henderson factors one, two, four and five weigh in favor of the sanction of

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dismissal with prejudice, and factor three does not clearly favor dismissal. Given plaintiff’s

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pattern of dilatory conduct despite the many opportunities this court has provided, the court finds

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“that the future [holds] only the prospect of continued improprieties.” Chism v. National

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Heritage Life Ins. Co., 637 F.2d 1328, 1332 (9th Cir. 1981), overruled on other grounds, Bryant

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v. Ford Motor Co., 844 F.2d 602 (9th Cir. 1987), order vacated by 488 U.S. 986 (1988).

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Plaintiff’s claims are therefore DISMISSED with prejudice. This case is closed.

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IT IS SO ORDERED.
Dated: October 29, 2013.

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UNITED STATES DISTRICT JUDGE

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