L&M Ventures LLC et al v. Travelers Casualty & Surety Company of America et al

Filing 51

ORDER DENYING DEFENDANT'S MOTION TO DISMISS 49 (Illston, Susan) (Filed on 10/22/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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L&M VENTURES, LLC, a California LLC, et
al.,

United States District Court
For the Northern District of California

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ORDER DENYING DEFENDANT’S
MOTION TO DISMISS

Plaintiffs,

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No. C 10-05764 SI

v.
TRAVELERS CASUALTY & SURETY
COMPANY OF AMERICA, a Connecticut
corporation, et al.,
Defendants.

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Defendant Lipscomb & Pitts Insurance Agency, LLC (“Lipscomb & Pitts”) filed a motion to
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dismiss for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b), which motion is
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currently scheduled for hearing on November 8, 2013. Pursuant to Civil Local Rule 7-1(b), the Court
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finds this matter appropriate for resolution without oral argument and hereby VACATES the hearing.
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Having considered the papers submitted, and for good cause shown, the Court hereby DENIES
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defendant’s motion.
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Federal Rule of Civil Procedure 41(b) provides that “[i]f the plaintiff fails to prosecute or to
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comply with these rules or a court order, a defendant may move to dismiss the action or any claim
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against it.” Fed. R. Civ. P. 41(b). Dismissal for failure to prosecute “is a harsh penalty and is to be
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imposed only in extreme circumstances.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).
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“[I]n order for a court to dismiss a case as a sanction, the district court must consider five factors:
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‘(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket;
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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their
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merits; and (5) the availability of less drastic alternatives.’” Yourish v. California Amplifier, 191 F.3d

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983, 990 (9th Cir. 1999). In addition, a dismissal for lack of prosecution must be supported by a

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showing of unreasonable delay. Henderson, 779 F.2d at 1424.
Defendant Lipscomb & Pitts argues that the Court should dismiss plaintiffs’ action without

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prejudice for failure to prosecute. Docket No. 49-1 at 2. However, the record before the Court shows

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that the plaintiffs have been diligent in prosecuting the action. The action is currently stayed pursuant

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to the parties’ stipulation pending the resolution of the Missouri State Court action Arkansas-Missouri

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Wood Products v. Lerner, Case No. 09CG-CC0092. See Docket Nos. 33-35. During the stay, plaintiffs

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have complied with each of the Court’s orders requiring the filing of a status report. See Docket Nos.

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United States District Court
For the Northern District of California

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37, 39, 47. Therefore, there has been no failure to prosecute by the plaintiffs. In addition, the Court

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rejects Lipscomb & Pitts’ argument that it is prejudiced by a stay of the action rather than a dismissal

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without prejudice because Lipscomb & Pitts stipulated to staying the action, and it has not attempted

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to terminate the stay pursuant to paragraph 4 of the stipulation. Lipscomb & Pitts also fails to explain

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why the Court should entertain its motion to dismiss if the action is currently stayed. Accordingly, the

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Court DENIES Lipscomb & Pitts’ Rule 41(b) motion to dismiss for failure to prosecute. Docket No.

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49.

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IT IS SO ORDERED.

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Dated: October 22, 2013
SUSAN ILLSTON
United States District Judge

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