J&J Sports Productions, Inc v. Mojica et al

Filing 32

ORDER granting 24 MOTION to Dismiss, granting 28 MOTION for Leave to File Surreply to Defendants' Reply. Signed by Judge Lucy Koh on 9/25/2014. (lhklc2, COURT STAFF) (Filed on 9/25/2014) CORRECTION OF DOCKET # 31

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10
United States District Court
For the Northern District of California

8

SAN JOSE DIVISION

11

J & J SPORTS PRODUCTIONS, INC.,

12

Plaintiff,
v.

13
14

JAVIER TERAN MOJICA, et al.,
Defendants.

15
16
17

)
)
)
)
)
)
)
)
)

Case No.: 11-CV-05440-LHK

ORDER GRANTING MOTION TO
DISMISS FOR FAILURE TO
PROSECUTE

Plaintiff J & J Sports Productions, Inc. (“Plaintiff”) brings suit against Defendants Javier
Teran Mojica and Evelia Mojica Carpio (“Defendants”), alleging that Defendants engaged in the

18
unauthorized publication or display of a televised boxing match for financial gain in violation of 47
19
U.S.C. §§ 553 and 605, conversion, and unfair business practices in violation of California
20
Business and Professions Code § 17200, et seq. Complaint, ECF No. 1, ¶¶ 9-37. Currently before
21

the Court is Defendants’ Motion to Dismiss for Failure to Prosecute (“Mot.”). ECF No. 24. The

22
Court finds this matter appropriate for determination without oral argument and VACATES the
23
24

hearing set for October 9, 2014. See Civil L. R. 7-1(b). Having reviewed the parties’ submissions
and the relevant law, the Court GRANTS Defendants’ Motion.

25
26
27
28

I.

BACKGROUND
Plaintiff is a California corporation with its principal place of business in Campbell,

California. Compl. ¶ 6. Plaintiff claims it was granted the exclusive nationwide commercial
1
Case No.: 11-CV-05440-LHK
ORDER GRANTING MOTION DISMISS FOR FAILURE TO PROSECUTE

1

distribution rights to the boxing match, “‘Tactical Warfare’: Manny Pacquiao v. Antonio Margarito

2

WBC Light Middleweight Championship Fight Program” (“Program”). Compl. ¶ 10. The Program

3

was broadcast nationwide on Saturday, November 13, 2010. Id. Plaintiff entered into sublicensing

4

agreements with various commercial entities (i.e. hotels, racetracks, casinos, bars, restaurants)

5

granting them the right to publicly exhibit the Program within their premises. Compl. ¶ 11.

6

Defendants Javier Teran Mojica and Evelia Mojica Carpio were the owners and operators of El

7

Huarache King restaurant in King City, California, from 2005 to August 2013. Declaration of

8

Javier Teran Mojica in Support of Defendants’ Motion to Dismiss for Failure to Prosecute

9

(“Mojica Decl.”), ECF No. 24-2, ¶ 2. Plaintiff alleges that Defendants willfully exhibited the

United States District Court
For the Northern District of California

10

Program at El Huarache King, without authorization from Plaintiff, for Defendants’ financial gain.

11

Compl. ¶¶ 13-14. Defendants deny the allegations. See Mojica Decl. ¶¶ 3-4.

12

II.

13

PROCEDURAL HISTORY
Plaintiff filed its Complaint on November 9, 2011. See Compl. Plaintiff served Defendants

14

with the Complaint on January 13, 2012, ECF No. 10. Plaintiff filed a declination to proceed before

15

a Magistrate Judge on January 26, 2012, ECF No. 8, and the case was subsequently reassigned to

16

the undersigned judge, ECF No. 9. Defendants filed their Answer on February 10, 2012.1 ECF No.

17

13. No actions took place in this matter for approximately two years until April 10, 2014, when this

18

Court set a case management conference in early May. ECF No. 14. Defendants state that between

19

February 10, 2012 and April 2014, they received no written or oral communications from Plaintiff.

20

Mojica Decl. ¶ 7; Declaration of Evelia Mojica Carpio in Support of Defendants’ Motion to

21

Dismiss for Failure to Prosecute (“Carpio Decl.”), ECF No. 24-3, ¶ 6. On May 5, 2014, Plaintiff

22

sent Defendants its initial disclosures listing as potential witnesses, among others, Defendants,

23

Defendants’ employees who were working on the evening of November 13, 2010, and the morning

24

of the following day, and the patrons of Defendants’ restaurant during those times.2 Exhibit A to

25
26
27
28

1

Defendants initially proceeded pro se in this matter. Mojica Decl. ¶ 7. This Court appointed pro
bono counsel for Defendants on April 30, 2014. ECF No. 16.
2
Plaintiff sent Defendant initial disclosures approximately 28 months after they were due. See
Order Setting Initial Case Management Conference and ADR Deadlines, ECF No. 4, at 2 (setting
deadline of December 20, 2011 to send initial disclosures.) Plaintiff acknowledges it missed this
deadline. Opp’n at 8.
2
Case No.: 11-CV-05440-LHK
ORDER GRANTING MOTION DISMISS FOR FAILURE TO PROSECUTE

1

Declaration of Pei Hsien Ren in Support of Defendants’ Motion to Dismiss for Failure to Prosecute

2

(“Ren Decl. Ex. A”), ECF No. 24-1, at 3-4. Plaintiff also disclosed a sworn affidavit from an

3

investigator who says he observed the Program being played at El Huarache King on November

4

13, 2010, in front of approximately 50 patrons. Id. at 8-9.

5

On July 10, 2014, Defendants filed this Motion. In support of its motion, Defendants filed:

6

(1) the Declaration of Pei Hsien Ren in Support of Defendant’s Motion to Dismiss for Failure to

7

Prosecute, ECF No. 24-1, with two exhibits attached thereto; (2) the Mojica Declaration; and (3)

8

the Carpio Declaration. Plaintiff filed its opposition (“Opp’n”) on July 24, 2014, ECF No. 26, as

9

well as the Declaration of Thomas P. Riley in support therewith, ECF No. 26-1. Defendants filed

United States District Court
For the Northern District of California

10

their reply (“Reply”) on July 31, 2014. ECF No. 27. On August 7, 2014, Defendants filed a Motion

11

for Leave to File Surreply to Defendants’ Reply, ECF No. 28, which attached Plaintiff’s surreply,

12

ECF NO. 28-1.3

13

III.

LEGAL STANDARD
A defendant may move to dismiss an action or claim if, inter alia, the plaintiff “fails to

14
15

prosecute or to comply with these rules or a court order.” Fed R. Civ. Proc. 41(b). The courts have

16

read this rule to require that a plaintiff prosecute an action with “reasonable diligence.” Anderson v.

17

Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976). In the Ninth Circuit, a district court weighs five

18

factors to determine whether to dismiss a case for lack of prosecution: (1) the public’s interest in

19

expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

20

prejudice to the defendants; (4) the public policy favoring the disposition of cases on their merits;

21

and (5) the availability of less drastic sanctions. Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447,

22

1451 (9th Cir. 1994).

23

A.

24

“The public’s interest in expeditious resolution of litigation always favors dismissal.”

The Public’s Interest in Expeditious Resolution of Litigation

25

Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (internal quotation marks omitted). The

26

“[o]rderly and expeditious resolution of disputes is of great importance to the rule of law,” in part

27

3

28

The Court hereby grants Plaintiff’s Motion for Leave to File Surreply and orders that the surreply
attached to Plaintiff’s motion is deemed filed. In ruling on this Motion, the Court took into account
the arguments Plaintiff raised in its surreply.
3
Case No.: 11-CV-05440-LHK
ORDER GRANTING MOTION DISMISS FOR FAILURE TO PROSECUTE

because “delay in reaching the merits … is costly in money, memory, manageability, and

2

confidence in the process.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460

3

F.3d 1217, 1227 (9th Cir. 2006). Here, there is no dispute that over two years lapsed between

4

Defendants’ service of its Answer on February 10, 2014, and April 10, 2014, when this Court set a

5

case management conference in early May 2014. There is also no dispute that during this period,

6

Plaintiff took no action, and made no contact with Defendants. Furthermore, to date nearly three

7

years have passed from when Plaintiff filed its Complaint. This span of time is not commensurate

8

with the “[o]rderly and expeditious resolution of [this] dispute[].” In re PPA, 460 F.3d at 1227.

9

Plaintiff argues that it “did precisely what it was instructed to do at every step of the litigation,” but

10
United States District Court
For the Northern District of California

1

Plaintiff also acknowledges that it “does have the ultimate obligation to pursue its claim.” Opp’n at

11

7. Plaintiff cannot excuse its passivity for over two years by saying that Plaintiff has only done

12

what the Court told Plaintiff to do. If Plaintiff truly wanted the justice to which it claims it is

13

entitled, Plaintiff should have had every incentive to move this case along. Plaintiff has not done

14

so.

15

The Court finds that this factor weighs in favor of dismissal.

16

B.

17

District courts have the inherent power to impose sanctions, including default or dismissal,

The Court’s Need to Manage its Docket

18

to control their dockets. In re PPA, 460 F.3d at 1227. Here, to have a case sit on the docket for

19

approximately three years, in large part due to the Plaintiff’s inactivity, interferes with the Court’s

20

ability to effectively manage its docket. The Court finds this factor weighs in favor of dismissal.

21

C.

22

“A defendant suffers prejudice if the plaintiff’s actions impair the defendant’s ability to go

The Risk of Prejudice to Defendants

23

to trial or threaten to interfere with the rightful decision of the case.” Adriana Int’l Corp v.

24

Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990). The Ninth Circuit has held that “the failure to

25

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

26

actual prejudice to the defendant. … The law presumes injury from unreasonable delay.” In re

27

Eisen, 31 F.3d at 1452-53. A plaintiff can rebut this presumption of prejudice by offering “an

28

excuse for his delay that is anything but frivolous,” at which point “the burden of production shifts
4
Case No.: 11-CV-05440-LHK
ORDER GRANTING MOTION DISMISS FOR FAILURE TO PROSECUTE

1

to the defendant to show at least some actual prejudice.” Nealey v. Transportacion Maritima

2

Mexicana, S.A., 662 F.2d 1275, 1281 (9th Cir. 1980).

3

Here, it is undisputed that there has been a delay of over two years between when

4

Defendants filed their Answer and Plaintiff took its next action. Moreover, it is undisputed that

5

nearly three years have elapsed between now and when Plaintiff filed its complaint. The Court

6

finds that this substantial delay is unreasonable and therefore creates a presumption of prejudice.

7

Moreover, Plaintiff does not even attempt to offer a non-frivolous excuse for its delay. Plaintiff

8

claims that it has “offered clear explanations of every step it has taken and why,” Opp’n at 10, but

9

it is unclear what “clear explanations” Plaintiff references. Indeed, the only explanation the Court

United States District Court
For the Northern District of California

10

can identify in Plaintiff’s papers is that Plaintiff “has adhered to the Federal Rules of Civil

11

Procedure and adhered to the Orders of this Court,” and that it is “reasonable for Plaintiff to

12

prosecute its case as directed by the Orders of this Court.” Opp’n at 7; see also id. at 8 (“Plaintiff

13

has followed this Court’s Orders and taken the steps it has been required to take.”). However, it is

14

unreasonable for Plaintiff to let this matter languish for over two years. Moreover, Plaintiff’s claim

15

that it has complied with the orders of this Court is not an excuse; it is Plaintiff’s burden, not the

16

Court’s, to prosecute Plaintiff’s claims with reasonable diligence. Furthermore, even if Plaintiff

17

had offered a non-frivolous excuse for its delay, Defendants have shown that the delay has

18

impaired or interfered with their ability to put on their defense. Plaintiff’s disclosures show that its

19

case will rely on the testimony of eyewitnesses, including that of Defendants, Defendants’

20

employees and patrons, and Plaintiff’s investigator. See Ren Decl. Ex. A, at 3-4. However, given

21

that approximately four years have passed between now and the evening in question, there is a

22

substantial risk that the passage of time has eroded at least some of these witnesses’ memories.4

23
24
25
26
27
28

Plaintiff disputes the veracity of Defendants’ claims, arguing that it is incongruous for Defendants
to state that their memories have been generally impaired such that they cannot recall with
specificity what happened the night of November 13, 2010, but to also state that they did not
exhibit the Program at their restaurant. Opp’n at 10; see also Mojica Decl. ¶ 4 (“The restaurant did
not display ‘Tactical Warfare, Pacquiao v. Margarito’ on any of the TVs in the restaurant on
November 13, 2010.”) Defendants claim that their restaurant lacked cable or satellite TV
connections to any of its television sets, and that the televisions were not capable of streaming
video from the Internet. Mojica Decl. ¶ 4. Therefore, it is not contradictory for Defendants to state
that they did not exhibit a live boxing match, and to state that they do not recall the events of that
evening with specificity.
5
4

Case No.: 11-CV-05440-LHK
ORDER GRANTING MOTION DISMISS FOR FAILURE TO PROSECUTE

1

See Mojica Decl. ¶ 5 (“November 13, 2010 was an uneventful night nearly four years ago, and I

2

have a (sic) difficulty recalling what happened that particular night.”); Carpio Decl. ¶ 5 (same). The

3

loss of evidence or memory is sufficient to show that Defendants have suffered prejudice,

4

especially in a case that appears to hinge almost entirely on the memory of eyewitnesses.5 See In re

5

PPA, 460 F.3d at 1228 (“Prejudice normally consists of loss of evidence and memory …”);

6

Pagtalunan v. Galaza, 291 F.3d at 643 (“Unnecessary delay inherently increases the risk that

7

witnesses’ memories will fade and evidence will become stale.”). Moreover, Defendants closed

8

their restaurant in August 2013, see Carpio Decl. ¶ 2, making it more likely that it will be difficult

9

to find witnesses who might contribute to their defense. The Court finds that Plaintiff’s delay has

United States District Court
For the Northern District of California

10

prejudiced Defendants. Therefore, this factor weighs in favor of dismissal.

11

D.

12

The public policy that favors disposition of cases on their merits means that this factor

The Public Policy Favoring Disposition of Cases on Their Merits

13

almost always weighs against dismissal. See Pagtalunan, 291 F.3d at 643. However, Plaintiff’s

14

unreasonable delay has caused Defendants to suffer prejudice that itself may interfere with the

15

disposition of this case on the merits. See In re PPA, 460 F.3d at 1228 (“At the same time, a case

16

that is stalled or unreasonably delayed by a party’s failure to comply with deadlines and discovery

17

obligations cannot move forward toward resolution on the merits.”) Therefore, the Court finds that

18

even if this factor weighs against dismissal, the weight is slight.

19

E.

20

Dismissal of a complaint under Rule 41(b) is a “harsh remedy,” and the district court should

The Availability of Less Drastic Alternatives

21

consider adopting less drastic alternatives. McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996).

22

Monetary sanctions are a less drastic alternative that would punish Plaintiff for its delay. But while

23

imposing such sanctions might encourage Plaintiff to be more diligent in its prosecution going

24

forward, it will not cure the prejudice Defendants have already suffered. Nevertheless, the Court

25

finds that this factor weighs against dismissal of Plaintiff’s complaint.

26
27
28

5

Defendant Javier Mojica also claims that his doctor has prescribed him pain medication that
affects his memory and makes it harder for him to recall things that occurred in the past. Mojica
Decl. ¶ 6. However, there was not any evidence presented as to when Mojica began taking this
medication, and therefore there is no evidence linking this with the prejudice Defendants suffered
as a result of Plaintiff’s delay.
6
Case No.: 11-CV-05440-LHK
ORDER GRANTING MOTION DISMISS FOR FAILURE TO PROSECUTE

1
2
3
4
5
6

IV.

CONCLUSION
Taking into consideration the public’s interest in the expeditious resolution of litigation, the

Court’s need to manage its docket, the risk of prejudice to the Defendants, the public policy
favoring disposition of cases on their merits, and the availability of less drastic alternatives, the
Court hereby GRANTS Defendants’ motion to dismiss for failure to prosecute. The Court
dismisses Plaintiff’s complaint with prejudice. The Clerk shall close the file.

7
8
9

IT IS SO ORDERED.
Dated: September 25, 2014

_________________________________
LUCY H. KOH
United States District Judge

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7

Case No.: 11-CV-05440-LHK
ORDER GRANTING MOTION DISMISS FOR FAILURE TO PROSECUTE