Phillips v. Securitas Security Services USA Inc. et al

Filing 40

ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE by Judge Alsup denying 35 Motion for Recusal ; granting 37 Motion to Dismiss. (whalc1, COURT STAFF) (Filed on 12/14/2018) (Additional attachment(s) added on 12/14/2018: # 1 Certificate/Proof of Service) (tlS, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ME NINA E. PHILLIPS,

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For the Northern District of California

United States District Court

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Plaintiffs,

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No. C 17-06693 WHA

v.

ORDER DISMISSING CASE
FOR FAILURE TO PROSECUTE

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SECURITAS SECURITY SERVICES
USA INC., and TESLA MOTORS INC.,

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Defendants.
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In November 2017, plaintiff Me Nina Phillips, proceeding pro se, filed this employment-

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discrimination action against defendants Securitas Security Services and Tesla Motors. At the

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same time, plaintiff also filed an application to proceed in forma pauperis. An order denied that

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application and directed plaintiff to file the $400 filing fee by December 14. Plaintiff did not pay

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the filing fee (Dkt. Nos. 1–2, 4).

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At a case management conference in February 2018, plaintiff reported that she had not

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yet served defendants with the summons and complaint. A February 27 order accordingly

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directed plaintiff to file a certificate of service demonstrating her compliance with FRCP 4's

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service requirements by April 12. Both defendants received a copy of a complaint on April 10,

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but not a summons. Notwithstanding plaintiff’s attempt at proper service, defendants moved to

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dismiss the action for lack of sufficient service of process and on the ground that plaintiff’s

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claims were barred by the statute of limitations. In the alternative, defendants argued that
plaintiff should be ordered to provide a more definite statement pursuant to FRCP 12(e). After

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three extensions of time, plaintiff filed an opposition to defendants’ motion to dismiss (Dkt. Nos.

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7, 12, 16, 18–22).

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A July 19 order (handed out to the parties at the hearing on defendants’ motion to

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dismiss) explained that because plaintiff’s ineffective service could be cured by amendment, the

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case would be dismissed without prejudice and plaintiff would have until August 16 to properly

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serve the operative complaint and summons. The July 19 order cautioned plaintiff that failure to

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meet the August deadline would result in the case being closed (Dkt. Nos. 25–26).

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On August 16, plaintiff filed two amended complaints and a new application to proceed
in forma pauperis. Defendants promptly filed a motion to dismiss the newly-filed complaints,
arguing that plaintiff had failed to properly serve them with the original complaint as directed by

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For the Northern District of California

United States District Court

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the July 19 order. In the alternative, defendants moved for an order requiring plaintiff to file a

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complaint that adhered to the requirements of FRCP 8 and 10 (Dkt. Nos. 27–29).

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At the October 4 hearing on defendants’ second motion to dismiss, almost an hour was

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spent going over the problems in the way plaintiff tried to amend and serve her complaint. At

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the end of the hearing, the judge allowed plaintiff another try. Following the hearing, an order

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dated October 5 denied plaintiff’s application to proceed in forma pauperis but permitted

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plaintiff to pay a reduced filing fee of $100. A separate order set an October 31 deadline for

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plaintiff to revise and properly file a single second amended complaint and summons (Dkt. Nos.

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32–34).

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Rather than file an amended complaint as directed, plaintiff filed a motion “to recuse,”

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explaining her disagreement with the orders directing her to pay a reduced filing fee and to file

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an amended complaint. In light of this order’s ruling below, to the extent plaintiff’s motion is a

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request for reconsideration based of her in forma pauperis on new circumstances, the request is

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DENIED AS MOOT. To the extent plaintiff’s motion is a request for the undersigned judge to

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recuse himself from this case, the motion is DENIED.

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Defendants have also filed a motion to dismiss, citing plaintiff’s failure to file an

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amended complaint as directed. This case is now a year old and there is still no operative

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complaint. As explained above, plaintiff has received numerous extensions of time and second
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chances. Yet, to date, plaintiff has not filed an amended complaint. Because plaintiff has

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repeatedly failed to respond to deadlines governing this action, dismissal under FRCP 41(b) for

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failure to prosecute is proper. This action is therefore DISMISSED WITH PREJUDICE. Judgment

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will be entered separately.

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IT IS SO ORDERED.

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Dated: December 14, 2018.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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