Yang v. Francesca's Collections, Inc.

Filing 70

ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE. ***Civil Case Terminated.*** Signed by Judge Haywood S. Gilliam, Jr. on 5/9/2018. (ndrS, COURT STAFF) (Filed on 5/9/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MIE YANG,
Plaintiff,

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FRANCESCA'S COLLECTIONS, INC.,
Defendant.

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United States District Court
Northern District of California

ORDER DISMISSING CASE FOR
FAILURE TO PROSECUTE

v.

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Case No.17-cv-04950-HSG

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On March 8, 2018, former counsel for Plaintiff Mie Yang filed a motion to withdraw,

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citing their inability to communicate with Plaintiff about her case. See Dkt. No. 53 at 2-3. In the

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declaration accompanying the motion, counsel stated that Plaintiff had not responded to any

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communications since December 17, 2017, despite their numerous attempts to contact her. See

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Dkt. No. 54 (Declaration of Erin M. Scharg, or “Scharg Decl.”) ¶¶ 8-12. The Court granted

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counsel’s motion to withdraw on April 19, 2018. See Dkt. No. 65. That same day, the Court

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entered an order directing Plaintiff to show cause why this case should not be dismissed for failure

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to prosecute. Dkt. No. 66 at 1. Plaintiff was directed to file a statement by April 30, 2018, see id.

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at 2, and failed to do so. Accordingly, for the reasons set forth below, this action is DISMISSED

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WITHOUT PREJUDICE for failure to prosecute.

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I.

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DISCUSSION
The district court may dismiss a case for failure to prosecute or for failure to comply with a

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court order. See Fed. R. Civ. P. 41(b). “The authority of a court to dismiss sua sponte for lack of

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prosecution has generally been considered an ‘inherent power,’ governed not by rule or statute but

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by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly

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and expeditious disposition of cases.” Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962).

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“Despite this authority, dismissal is a harsh penalty and, therefore, it should only be imposed in

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extreme circumstances.” Ferdik v. Bonzelet, 963 F.3d 1258, 1260 (9th Cir. 1992) (citations

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omitted); see also Fed. R. Civ. P. 41(b) (stating that dismissal for failure to prosecute “operates as

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an adjudication on the merits” unless the order says otherwise).

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Courts “must weigh five factors” in determining whether to dismiss a case for failure to

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prosecute: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of less drastic alternatives.” See

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Ferdik, 963 F.3d at 1260-61. A court need not make “explicit findings in order to show that it has
considered these factors,” although such findings are preferred. Id. at 1261. Here, the Court

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United States District Court
Northern District of California

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considers each factor in turn, and finds that they weigh in favor of dismissal.

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First, “[t]he public’s interest in expeditious resolution of litigation always favors

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dismissal.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting Yourish v. Cal.

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Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). That is true here. Plaintiff failed to respond to any

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of her former attorneys’ communications for at least four months, starting on December 17, 2017

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and continuing through at least April 19, 2018, when the hearing on the motion to withdraw took

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place. See Scharg Decl. ¶¶ 8-12; Dkt. No. 65. Further, Plaintiff failed to respond to this Court’s

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April 19, 2018 order to show cause why this case should not be dismissed for failure to prosecute.

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See Dkt. No. 66. The Court is satisfied that Plaintiff’s lack of responsiveness contravenes the

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“public’s interest in expeditious resolution of litigation.” See Pagtalunan, 291 F.3d at 642. This

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factor therefore weighs in favor of dismissal.

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Second, it is “incumbent” upon courts “to manage [their] docket[s] without being subject

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to routine noncompliance” of litigants. See id. (citing Ferdik, 963 F.2d at 1261). Moreover, “[t]he

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trial judge is in the best position to determine whether the delay in a particular case interferes with

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docket management and the public interest.” Id. Here, Plaintiff has demonstrated “routine

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noncompliance”: she failed to attend the hearing on the motion to withdraw in person, as ordered

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by the Court on April 10, 2018, see Dkt. No. 64, and failed to respond to the April 19 order to

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show cause as detailed above, see Dkt. No. 66. Plaintiff’s noncompliance and the resulting
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litigation (e.g., the motion to withdraw and this dismissal order) “has consumed some of the

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court’s time that could have been devoted to other cases on the docket.” See Pagtalunan, 291

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F.3d at 642. This factor therefore weighs in favor of dismissal.

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Third, in order to prove prejudice, “a defendant must establish that plaintiff’s actions

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impaired defendant’s ability to proceed to trial or threatened to interfere with the rightful decision

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of the case.” Id. (citing Malone v. U.S. Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987)).

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“Whether prejudice is sufficient to support an order of dismissal is in part judged with reference to

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the strength of the plaintiff’s excuse for the default.” Malone, 833 F.2d at 131 (citation omitted).

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In Malone, which involved a Rule 41(b) dismissal for failure to comply with a court order, the
district court found the plaintiff’s excuse for her failure to comply with a pretrial order to be

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United States District Court
Northern District of California

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“groundless,” justifying dismissal. Id. And in Yourish, which also involved plaintiffs who failed

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to obey a court order, the court concluded that the defendants had suffered “sufficient prejudice”

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where the plaintiffs had only a “paltry excuse” for why they failed to timely amend their

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complaint. 191 F.3d at 991-92. Here, by way of comparison, Plaintiff has not even provided a

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“groundless” or “paltry” excuse—rather, she has been entirely absent, and failed altogether to

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respond to this Court’s orders directing her to appear or obtain new counsel in order to move her

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case forward. This factor therefore weighs in favor of dismissal.

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Fourth, the Court has attempted to avail itself of less drastic alternatives that have proven

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ineffective in advancing the case. Specifically, the Court ordered Plaintiff to appear at the hearing

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on the motion to withdraw, in order to provide her an opportunity to be heard and, if necessary,

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facilitate a change in the case schedule to accommodate a substitution of counsel. See Dkt. No.

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64. She failed to appear. See Dkt. No. 66 at 1. The Court then entered an order to show cause,

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expressly warning Plaintiff that her case was at risk of dismissal for failure to prosecute. See id. at

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1-2. She failed to show cause. This factor therefore weighs in favor of dismissal. See Ferdik, 963

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F.2d at 1262 (stating that Ninth Circuit authority “suggest[s] that a district court’s warning to a

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party that his [or her] failure to obey the court’s order will result in dismissal can satisfy the

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‘consideration of alternatives’ requirement”).

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Last, because “[p]ublic policy favors disposition of cases on the merits . . . this factor
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weighs against dismissal.” See Pagtalunan, 291 F.3d at 643. This is true here, where Plaintiff

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would be precluded from litigating her surviving claims due to her failure to prosecute.
Because four of the five factors weigh in favor of dismissal, the Court finds that dismissal

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of Plaintiff’s case for failure to prosecute is appropriate.

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II.

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CONCLUSION
For the foregoing reasons, Plaintiff’s action is DISMISSED WITHOUT PREJUDICE.

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The Clerk is directed to close the case.

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IT IS SO ORDERED.

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Dated: 5/9/2018

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United States District Court
Northern District of California

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HAYWOOD S. GILLIAM, JR.
United States District Judge

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