Baca v. Jeffers, et al

Filing 153

ORDER DISMISSING CASE WITH PREJUDICE FOR FAILURE TO PROSECUTE. Signed by Judge Maria-Elena James on 6/9/2016. (cdnS, COURT STAFF) (Filed on 6/9/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID O. BACA,

Case No. 13-cv-02968-MEJ

Plaintiff,
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ORDER DISMISSING CASE FOR
FAILURE TO PROSECUTE

v.
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B. JEFFERS, et al.,
Defendants.

United States District Court
Northern District of California

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INTRODUCTION
This matter is before the Court on an Order to Show Cause (“OSC”) Regarding Dismissal

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for Failure to Prosecute based on Plaintiff David O. Baca’s (“Plaintiff”) repeated failures to

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comply with the orders of this Court. Dkt. No. 151. Plaintiff has failed to respond to the OSC by

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the specified deadline and did not appear at the June 9, 2016 OSC hearing. Accordingly, for the

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reasons set forth below, the Court DISMISSES the instant action WITH PREJUDICE pursuant

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to Federal Rule of Civil Procedure 41(b).

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BACKGROUND
On June 3, 2013, Plaintiff, through counsel, filed the instant civil rights action under 42

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U.S.C. § 1983 in Alameda County Superior Court against the California Department of Highway

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Patrol, the County of Alameda (the “County”), and various other parties. The County removed the

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action pursuant to 28 U.S.C. § 1441(b) on the grounds that Plaintiff’s claim under § 1983 is

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founded on federal law. See Dkt. No. 1 (Notice of Removal).

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Trial in this action originally was set to commence on October 20, 2014. Dkt. No. 43.

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Shortly before that date, Plaintiff filed a motion to continue the trial date. Dkt. No. 77. The Court

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granted Plaintiff’s motion. Dkt. No. 80. On October 23, 2014, the Court held a Case Management

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Conference and set March 30, 2015 as the new trial date. Dkt. No. 84. The Court also ordered the

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parties to submit a joint statement regarding a potential re-referral for settlement by no later than

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February 17, 2015. Id.

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On February 13, 2015, defense counsel emailed Plaintiff’s counsel to remind him that their

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joint statement was due shortly. Dkt. No. 89. Plaintiff’s counsel did not respond, and as such, no

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joint statement was filed. Id. As a result, on March 12, 2015, the Court vacated the trial date and

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ordered the parties to submit their joint statement within seven days, i.e., by March 19, 2015. Dkt.

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No. 87. Thereafter, defense counsel emailed Plaintiff’s counsel, again reminding him that the

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parties were to file a joint statement requesting or objecting to a referral for a further settlement
conference. Dkt. No. 88 at 2 & Ex. B. The email also requested that Plaintiff’s counsel prepare a

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United States District Court
Northern District of California

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first draft of the joint statement. Id. After Plaintiff’s counsel failed to respond, Defendants

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separately filed a timely statement on March 19, 2015. Id.

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On March 31, 2015, the Court issued the first OSC in this case, requiring Plaintiff to

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demonstrate cause why the action should not be dismissed under Federal Rule Civil Procedure

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41(b) for failure to comply with a Court order. Dkt. No. 89. Plaintiff’s counsel timely filed a

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response to the show cause order, claiming that his failure to comply was inadvertent. Dkt. No.

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91. On April 15, 2015, the Court vacated the OSC and, pursuant to Plaintiff’s request, referred the

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matter to attorney-mediator Louis Leone for a mediation session. Dkt. No. 92. The Order stated,

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in pertinent part: “Within one week of the date this order is filed, the parties shall schedule an

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ENE/Mediation session with Mr. Leone. Upon scheduling the session with Mr. Leone, the parties

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shall forthwith jointly file a written notice indicating the agreed-upon date.” Id. at 2.

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The Court did not receive any notice that the parties had scheduled the mediation.

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However, the mediator notified the Court that Plaintiff failed to respond to his request for

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available dates for mediation. Dkt. No. 93 at 2. Thus, on April 27, 2015, the Court issued an

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Order stating that “Plaintiff shall forthwith notify the Mediator and Defendants whether he is able

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to participate in a Mediation on May 21, May 26 or May 27, 2015. . . . By no later than April 30,

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2015, Plaintiff shall file with the Court a notice indicating the date that has been scheduled for the

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Mediation.” Id. Plaintiff did not file the notice, as ordered. However, the mediator subsequently
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filed a Certification of Mediation indicating that a mediation session was conducted on May 26,

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2015. Dkt. No. 95.

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On August 13, 2015, the Court held a further Case Management Conference for the

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purpose of rescheduling the trial date. At the conference, Plaintiff’s counsel informed the Court

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that he intended to file a motion to withdraw. As such, the Court declined to set a new trial date,

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but instead ordered counsel to file his motion to withdraw by no later than August 26, 2015. Dkt.

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Nos. 99, 100. On August 27, 2015, after the filing deadline had passed, Plaintiff requested to

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enlarge the deadline to September 4, 2015. Dkt. No. 101. The Court granted Plaintiff’s request.

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Dkt. No. 102. To date, however, Plaintiff’s counsel has not filed his motion to withdraw.

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On September 14, 2015, the Court issued a second OSC based on Plaintiff’s repeated

United States District Court
Northern District of California

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failures to comply with its orders. Dkt. No. 103. Plaintiff’s written response to the OSC was due

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by the close of business on September 16, 2015, and the OSC warned that the failure to timely file

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such a response “WILL BE DEEMED SUFFICIENT GROUNDS TO DISMISS THE ACTION

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WITH PREJUDICE, WITHOUT FURTHER NOTICE.” Id. at 2. After Plaintiff failed to respond

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to the OSC, the Court dismissed this case with prejudice. Dkt. No. 104. The Court subsequently

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vacated the dismissal order on September 18, 2015 and ordered the parties to appear for a

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telephonic case management conference on September 30, 2015. Dkt. No. 106.

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After conducting the case management conference on September 30, the Court rescheduled

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the trial to commence on April 11, 2016 and ordered the parties to participate in a settlement

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conference with a magistrate judge. Dkt. No. 109. On March 24 and 28, 2016, the parties

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participated in settlement conferences with Magistrate Judge Laurel Beeler but were unable to

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settle. Accordingly, the Court vacated the trial date and scheduled a pretrial conference for April

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13, 2016. Dkt. No. 139. At the pretrial conference, both parties consented to the jurisdiction of a

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magistrate judge and the matter was reassigned to the undersigned magistrate judge. Dkt. Nos.

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142, 145.

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On April 14, 2016, the Court scheduled a case management conference on May 5, 2016, to

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be attended by lead trial counsel, and ordered the parties to file a joint case management statement

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by April 28, 2016. Dkt. No. 143. On April 29, 2016, Defendants filed a Separate Case
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Management Statement, indicating Plaintiff’s counsel had not responded to meet and confer

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efforts. Dkt. No. 147. Neither Plaintiff nor Plaintiff’s counsel appeared at the May 5, 2016 Case

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Management Conference, and Defendants’ counsel indicated he had not been able to communicate

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with Plaintiff’s counsel. Accordingly, on May 5, 2016, the Court issued a third OSC, requiring

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Plaintiff to show cause why sanctions should not be imposed for failure to comply with court

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orders. Dkt. No. 148. The Court ordered Plaintiff to file a responsive declaration by May 12,

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2016 and scheduled a hearing on May 19, 2016. Id. At the same time, the Court ordered the

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parties to meet and confer and thereafter file a joint case management statement by May 12, 2016.

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Id. The Court directed Plaintiff’s counsel to initiate the meet and confer by May 9, 2016, and
directed Defendants to file a declaration if Plaintiff’s counsel failed to initiate the meet and confer.

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United States District Court
Northern District of California

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Id. Plaintiff’s counsel failed to initiate the meet and confer. See Dkt. No. 150 (Declaration from

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Rohit Kodical, Defendants’ counsel). Further, Plaintiff failed to file a response to the third OSC

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and neither Plaintiff nor his counsel appeared at the May 19, 2016 show cause hearing.

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On May 19, 2016, the Court issued a fourth OSC, once again ordering Plaintiff to show

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cause why this case should not be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for

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failure to prosecute and failure to comply with court orders. Dkt. No. 151. The Court ordered

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Plaintiff to file a declaration by June 2, 2016 and scheduled a hearing on June 9, 2016. Id. The

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Court warned Plaintiff: “Notice is hereby provided that failure to file a written response will be

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deemed an admission that Plaintiff does not intend to prosecute, and the case will be dismissed

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without prejudice . . . .” Id. (emphasis in original). Plaintiff failed to file a responsive declaration

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and failed to appear at the June 9, 2016 OSC hearing.

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LEGAL STANDARD
Under Rule 41(b), “the district court may dismiss an action for failure to comply with any

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order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); see also Oliva v.

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Sullivan, 958 F.2d 272, 273-74 (9th Cir. 1992) (district court may dismiss sua sponte for failure to

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meet court deadline). “[T]he district court must weigh the following factors in determining

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whether a Rule 41(b) dismissal is warranted: ‘(1) the public’s interest in expeditious resolution of

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litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4)
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the public policy favoring disposition of cases on their merits; and (5) the availability of less

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drastic sanctions.’” 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)). The Henderson factors “are ‘not a

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series of conditions precedent before the judge can do anything,’ but a ‘way for a district judge to

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think about what to do.’” In re Phenylpropanolamine (PPA) Prods. Liab. Litig. (In re PPA), 460

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F.3d 1217, 1226 (9th Cir. 2006) (quoting Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051,

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1057 (9th Cir. 1998)). Dismissal is appropriate “where at least four factors support dismissal . . .

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or where at least three factors ‘strongly’ support dismissal.” Hernandez v. City of El Monte, 138

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F.3d 393, 399 (9th Cir. 1998).
DISCUSSION

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United States District Court
Northern District of California

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The first two Henderson factors strongly support dismissal. First, “the public’s interest in

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expeditious resolution of litigation always favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d

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983, 990 (9th Cir. 1999). Second, the Court’s need to manage its docket also weighs in favor of

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dismissal. Plaintiff delayed adjudication of the claims in this case such that the Court has now had

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to issue four OSCs regarding his failure to comply with Court orders and overall failure to

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prosecute. Dkt. Nos. 89, 103, 148, 151. Non-compliance with procedural rules and the Court’s

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orders wastes “valuable time that [the Court] could have devoted to other . . . criminal and civil

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cases on its docket.” Ferdik, 963 F.2d at 1261; Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.

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2002) (“It is incumbent upon the Court to manage its docket without being subject to routine

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noncompliance of litigants”).

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As for the third Henderson factor, the mere pendency of a lawsuit cannot constitute

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sufficient prejudice to require dismissal. Yourish, 191 F.3d at 991. However, “prejudice . . . may .

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. . consist of costs or burdens of litigation.” In re PPA, 460 F.3d at 1228. Moreover, “a

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presumption of prejudice arises from a plaintiff’s unexplained failure to prosecute.” Laurino v.

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Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002). A plaintiff has the burden of

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demonstrating a non-frivolous reason for failing to meet a court deadline. Id.; see Yourish, 191

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F.3d at 991. Here, Plaintiff has failed to respond to the Court’s three most recent OSCs, offered

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no explanation for his failure to respond to multiple orders (including all orders filed since the
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case was reassigned to the undersigned), failed to appear at the May 5, 2016 Case Management

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Conference and the two most recent OSC hearings, and has not requested an extension of time to

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respond. Therefore, the Court concludes the third Henderson factor also supports dismissal.

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The fourth Henderson factor, that public policy favors disposition of cases on their merits,

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normally weighs strongly against dismissal. See, e.g., Hernandez, 138 F.3d at 399. “At the same

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time, a case that is stalled or unreasonably delayed by a party’s failure to comply with deadlines . .

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. cannot move forward toward resolution on the merits.” In re PPA, 460 F.3d at 1228. The Ninth

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Circuit has “recognized that this factor ‘lends little support’ to a party whose responsibility it is to

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move a case toward disposition on the merits but whose conduct impedes progress in that
direction.” Id. (quoting In re Exxon Valdez, 102 F.3d 429, 433 (9th Cir. 1996)). The Court has

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United States District Court
Northern District of California

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already attempted less drastic sanctions without success, including four OSCs and giving Plaintiff

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an opportunity to explain his failure to prosecute. “Though there are a wide variety of sanctions

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short of dismissal available, the district court need not exhaust them all before finally dismissing a

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case.” Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981). Further, as Plaintiff

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failed to respond, another order requiring Plaintiff to respond is likely to be futile. See, e.g.,

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Gleason v. World Sav. Bank, FSB, 2013 WL 3927799, at *2 (N.D. Cal. July 26, 2013) (finding

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dismissal under Rule 41(b) appropriate where the court previously attempted the lesser sanction of

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issuing an Order to Show Cause and giving the plaintiff an additional opportunity to re-plead).

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Moreover, the Court has repeatedly warned Plaintiff of the risk of dismissal. Despite Plaintiff’s

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repeated, prior failures to comply with the Court’s orders, the Court has declined to dismiss the

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action and instead warned Plaintiff of the potential consequences of such conduct, including the

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dismissal of this action. Thus, he cannot maintain the Court failed in its “obligation to warn the

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plaintiff that dismissal is imminent.” Oliva, 958 F.2d at 274; Ferdik, 963 F.2d at 1262 (“a district

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court’s warning to a party that his failure to obey the court’s order will result in dismissal can

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satisfy the consideration of alternatives requirement.” (internal quotations and citations omitted)).

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The final factor, which favors disposition of cases on the merits, by definition, weighs

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against dismissal. Pagtalunan, 291 F.3d at 643 (“Public policy favors disposition of cases on the

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merits. Thus, this factor weighs against dismissal.”).
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CONCLUSION

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Based on the analysis above, the Court finds at least four of the five Henderson factors

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weigh in favor of dismissal. Plaintiff has repeatedly failed to comply with Court orders and has

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not responded to the Court’s three most recent OSCs. Thus, Plaintiff failed to prosecute this case

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and dismissal is appropriate. Accordingly, the Court hereby DISMISSES this case WITH

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PREJUDICE for failure to prosecute and failure to comply with the Court’s deadlines and orders.

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Judgment shall be entered accordingly.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: June 9, 2016
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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