Rau v. Mission Ranch Primary Care et al

Filing 37

ORDER signed by Judge Kimberly J. Mueller on 4/14/2014 GRANTING WITHOUT PREJUDICE 25 Motion to Dismiss for Failure to Prosecute; DENYING AS MOOT 32 Motion to Amend the Complaint. CASE CLOSED. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT COURT OF CALIFORNIA

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BRYN RAU,

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Plaintiff,

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v.
MISSION RANCH PRIMARY CARE,
MARCIA F. NELSON,
Defendants.

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No. 2:13-cv-00371-KJM-CMK

ORDER

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This matter is before the court on defendants’ motion to dismiss for failure to

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prosecute (ECF 25), on which the court held a hearing on March 28, 2014. Joann Pheasant

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appeared for plaintiff and Eunice Majam-Simpson appeared for defendants. Also before the

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court is plaintiff’s motion to amend the complaint (ECF 32), which the court submitted on the

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briefs. For the reasons below, the court GRANTS defendants’ motion and DENIES plaintiff’s

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motion as moot.

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I.

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ALLEGED FACTS AND PROCEDURAL BACKGROUND
Plaintiff worked for defendant Mission Ranch Primary Care (“MRPC”) and

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defendant Dr. Marcia Nelson as a medical assistant in Chico, California. (Compl. at 1–3,

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Defs.’ Pet. for Removal, Ex. A, ECF 1.) Plaintiff alleges defendants violated several state labor

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codes by denying her regular and overtime wages, and meal and rest periods. (Compl. at 3:161

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20.) She also asserts defendants fired her shortly after defendants confirmed with another

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employee that she had become pregnant, (id. at 3:27-28), and that defendant Nelson

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inappropriately accessed her medical records. (Id. at 4:2-3.) Plaintiff seeks injunctive relief

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and restitution, (id. at 6:18-23), and compensatory and punitive damages, (id. at 19:15, 23).

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She asserts eleven total causes of action. (Compl.)

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Plaintiff filed a complaint on January 22, 2013 in the Superior Court of

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California for Butte County and defendants filed notice of removal on February 25, 2013.

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(Defs.’ Pet. for Removal, ECF 1.) On March 4, 2013, the parties stipulated to plaintiff’s filing

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an amended complaint by March 25, 2013. (ECF 5.) The parties also stipulated defendants

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would not need to file a responsive pleading to the original complaint and would have fourteen

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days to file a responsive pleading upon plaintiff’s filing the first amended complaint. (ECF 5.)

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Plaintiff still had not filed an amended complaint by April 12, 2013, when defendants filed

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their first motion to dismiss, to strike, and for a more definite statement. (ECF 8.) On June 21,

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2013 the court granted the motion to dismiss plaintiff’s eighth, ninth, and twelfth claims,

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denied the motion for a more definite statement, and granted the motion to strike plaintiff’s

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seventh claim. (ECF 12.) The court also ordered plaintiff to file an amended complaint within

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21 days.

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On July 31, 2013, the court issued plaintiff’s counsel an order to show cause

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why she should not be sanctioned for not filing an amended complaint as ordered by the court.

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(ECF 15.) Plaintiff’s counsel still had not responded to this first OSC by August 27, 2013,

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when the court issued a second OSC. (ECF 18.) Plaintiff’s timely response to the second OSC

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stated she has been overwhelmed with a personal illness in her family. (ECF 19-1 at 2.) She

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also averred she had secured help in managing her practice so that further problems would not

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surface. (Id.) That same day, plaintiff attempted to file a first amended complaint, which the

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court struck because plaintiff did not comply with Federal Rule of Civil Procedure 15. (ECF

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22.) The court also sanctioned plaintiff’s counsel $250 for repeated noncompliance with the

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courts’ orders. (Id.)

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By October 22, 2013, more than a month after the deadline, plaintiff’s counsel

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had yet to pay her $250 sanction. The court issued a third order to show cause why she should

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not be sanctioned an additional $500 for not paying the earlier sanction. (ECF 23.) The court

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warned plaintiff’s counsel that failure to pay within seven days would result in the court

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reporting her to the State Bar of California. (Id.) Three weeks later, on January 16, 2014,

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plaintiff’s counsel paid the $250 sanction without comment. In a minute order issued that same

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day, the court gave plaintiff’s counsel an additional seven days to respond to its third order to

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show cause. (ECF 24.) Plaintiff’s counsel still had not responded seven days later when

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defendants filed the pending motion. (ECF 25.) On January 30, 2014, plaintiff’s counsel

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responded to the court’s third OSC. (ECF 26.) In that response, she stated she did not see the

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court’s orders because of a computer problem. (ECF 26-1 at 1.) She also said she has been

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caring for her mother in Seattle during her mother’s cancer surgery, and that her disabled

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spouse has been in the hospital for surgery, for which her spouse has needed significant care.

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(Id. at 2.) Finally, plaintiff’s counsel attested that the individual who was going to assist with

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or take over her cases was unable to do so due to her own workload. (Id.) Based on these

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representations, the court discharged its third OSC. (ECF 27.)

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On February 18, 2014, the court on its own motion continued the hearing on the

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defendants’ motion to dismiss, which was calendared for February 28, because plaintiff had not

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filed a response as required by the Local Rules. (ECF 29.) The court also ordered both

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plaintiff’s and defendants’ counsel to serve several documents on plaintiff Rau herself, to

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ensure Rau was apprised of the course of this litigation. (Id.) On February 26, 2014,

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defendants filed a certificate of service indicating they had served plaintiff as ordered. (ECF

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30.) Plaintiff’s counsel did not respond to the court’s order regarding service and still did not

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respond to defendants’ motion, which the court reset for hearing on March 28, 2014.

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On March 21, 2014, defendants filed a notice of plaintiff’s non-opposition to the

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pending motion, noting plaintiff’s lack of any response whatsoever. (ECF 31.) That same day

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— nine months after plaintiff first had been ordered to file an amended complaint and one week

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before the continued hearing on the motion to dismiss — plaintiff filed a motion to amend the
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complaint. (ECF 32.) In the motion to amend, plaintiff’s counsel simply references Federal

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Rule of Civil Procedure 15 and asserts defendants will not be prejudiced by permitting

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amendment because this case is in its infancy and no discovery has been conducted. (See id.)

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She does not provide a proposed amended complaint, although at hearing she clarified the

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amendment would be consistent with the amended complaint she attempted to file in

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September 2013. Also at hearing she reported she was still attempting to locate co-counsel.

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II.

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ANALYSIS
Upon a motion to dismiss for failure to prosecute under Rule 41(b), the court

must consider the factors outlined in In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994), namely:

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(1) the 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 defendants; (4) the policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic sanctions.

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The court finds here that the Eisen factors overall support dismissal. First, the

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public has an interest in expeditious resolution of litigation. Here, plaintiff did not respond to

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the instant motion to dismiss for failure to prosecute, despite being given a second opportunity.

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At hearing, plaintiff’s counsel stated she did not oppose the motion because she thought

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defendants’ arguments were “good.” Plaintiff only now has moved to file an amended

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complaint, nine months after the court directed its filing. See Yourish v. California Amplifier,

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191 F.3d 983, 990 (9th Cir. 1999) (“[T]he public’s interest in expeditious resolution of

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litigation always favors dismissal.”); FED. R. CIV. P. 1 (the public has an overriding interest in

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securing “the just, speedy, and inexpensive determination of every action”).

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Second, the court has an inherent interest in managing its docket. Plaintiff’s

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counsel has repeatedly failed to respond to this court’s orders. While the court sympathizes

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with plaintiff’s counsel’s personal difficulties, it cannot overlook the continuing deficiencies in

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her performance. As plaintiff tacitly acknowledged in her recent motion for leave to amend,

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this case has been stalled for nearly a year. Although the complaint was filed over fifteen

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months ago, no discovery has occurred; the case remains in its “infancy” based on counsel’s

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not having moved it forward. (ECF 32-2 at 2.) See Yourish, 191 F.3d at 990 (upholding

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district court’s dismissal under Rule 41(b) for these reasons).

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Third, a defendant’s ability to defend itself is prejudiced by the unnecessary

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passage of time. “A defendant suffers prejudice if the plaintiff’s actions impair the defendant’s

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ability to go to trial or threaten to interfere with the rightful decision of the case.” In re

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Phenylpropanolamine (PPA) Products Liab. Litig., 460 F.3d 1217, 1227 (9th Cir. 2006)

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(quotation marks and citation omitted). The law also presumes prejudice from unreasonable

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delay. Id. (citations omitted). In the instant case, defendants have been unable to move

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forward or to conduct any discovery in light of plaintiff’s counsel’s absenteeism. There also

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are accruing litigation costs.
Overall, the third factor only slightly supports dismissal because the delay has

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not been enormous, defendant has not produced evidence of actual prejudice beyond litigation

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costs, and plaintiff’s counsel’s excuses for delay are not frivolous. See In re Eisen, 31 F.3d at

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1453 (quoting Nealey v. Transportacion Maritima Mexicana, S. A., 662 F.2d 1275, 1281 (9th

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Cir. 1980) (setting forth the shifting burdens in proving prejudice and stating courts “consider

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prejudice and delay together to determine ‘whether there has been sufficient delay or prejudice

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to justify a dismissal of the plaintiff’s case’”) (original emphasis). However, the “failure to

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prosecute diligently is sufficient by itself to justify dismissal, even in the absence of a showing

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of actual prejudice to the defendant from the failure.” Morris v. Morgan Stanley & Co., 942 F.

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2d 648, 651 (9th Cir. 1991) (alteration in original) (quotation marks and citation omitted); see

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also Toyota Landscape Co., Inc. v. Building Materials & Dump Truck Drivers Local 420, 726

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F. 2d 525, 528 (9th Cir. 1984) (upholding dismissal of a claim under Rule 41(b) after plaintiffs

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did not file an amended complaint).

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Fourth, although public policy strongly favors disposition of actions on their

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merits, this consideration as in Yourish “is outweighed by the other four factors which support

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dismissal of this action.” Yourish, 191 F.3d at 992; cf. In re Eisen, 31 F.3d at 1454 (“Even if

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the plaintiff has an obviously strong case, dismissal would be appropriate if the plaintiff has

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clearly ignored his responsibilities to the court in prosecuting the action and the defendant had

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suffered prejudice as a result thereof.”) (quotation marks and citation omitted).

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Finally, this court has pursued less drastic alternatives for the past nine months.

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The court has given plaintiff no fewer than four opportunities to file an amended complaint, has

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issued three OSCs warning dismissal may occur, has sanctioned plaintiff’s counsel $250, has

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considered a further sanction but deferred decision in light of plaintiff’s silence in face of an

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OSC, and has continued by one month the hearing date on the instant motion to give plaintiff

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additional opportunity to respond. All to no avail. While plaintiff has filed a generic motion to

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amend, the motion does not acknowledge the motion to dismiss is pending. Plaintiff’s

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counsel’s appearance at hearing, however belated, is credited, and persuades the court that

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dismissal should be without prejudice.

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III.

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CONCLUSION
Defendants’ motion to dismiss for failure to prosecute is GRANTED without

prejudice. Plaintiff’s motion to amend is DENIED as moot. This case is CLOSED.
IT IS SO ORDERED.
DATED: April 14, 2014.

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UNITED STATES DISTRICT JUDGE

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