Bruner v. On-Site Manager, Inc.

Filing 38

ORDER DISMISSING ACTION FOR FAILURE TO COMPLY WITH COURT ORDER AND FAILURE TO PROSECUTE. Signed by Judge Beth Labson Freeman on 4/9/2018. (blflc1S, COURT STAFF) (Filed on 4/9/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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KENNETHA BRUNER,
Plaintiff,

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v.

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ON-SITE MANAGER, INC.,

ORDER DISMISSING ACTION FOR
FAILURE TO COMPLY WITH COURT
ORDER AND FAILURE TO
PROSECUTE

Defendant.

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United States District Court
Northern District of California

Case No. 15-cv-04071-BLF

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Following the parties’ failure to appear at the scheduled Final Pretrial Conference on

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March 22, 2018, the Court issued an Order to Show Cause Re: Dismissal directing Plaintiff to

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show cause why the action should not be dismissed for failure to comply with a Court order and

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failure to prosecute. Id. The Court advised Plaintiff that failure to respond by April 5, 2018

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would result in dismissal of the action pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff

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has not responded.
Accordingly, for the reasons discussed below, the action is DISMISSED.

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I.

BACKGROUND
Plaintiff Kennetha Bruner filed this action on September 8, 2015, asserting a single claim

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under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., based on Defendant’s alleged

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inaccurate credit reporting regarding Plaintiff’s criminal history. Compl., ECF 1. Plaintiff failed

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to appear at the Initial Case Management Conference scheduled for January 28, 2016. Minute

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Entry, ECF 21. The Court issued an Order to Show Cause Re: Sanctions, which was dissolved

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after Plaintiff’s counsel filed a declaration stating that her failure to appear was due to a

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calendaring error. Order to Show Cause, ECF 20; Tatar Decl., ECF 22; Order Dissolving Order to

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Show Cause, ECF 23. The Court rescheduled the Case Management Conference for March 17,

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2016, at which time the Court set the Final Pretrial Conference for March 15, 2018 and trial for

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April 9, 2018. Case Management Order, ECF 25. On December 7, 2017, the Court issued an

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order resetting the Final Pretrial Conference for March 22, 2018. Order Resetting PTC, ECF 34.
On January 26, 2018, the Court issued an order referring the case to Magistrate Judge

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Susan van Keulen for settlement. Order of Reference, ECF 35. Based on the docket, it does not

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appear that the parties scheduled a settlement conference with Judge van Keulen. On March 22,

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2018, the Court called the case for the scheduled Final Pretrial Conference, but neither party

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appeared. Minute Entry, ECF 37. The Court issued an Order to Show Cause Re: Dismissal but,

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as discussed above, Plaintiff has failed to show cause or respond in any way. Order to Show

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United States District Court
Northern District of California

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Cause, ECF 36.
II.

LEGAL STANDARD
Under Federal Rule of Civil Procedure 41(b), a district court may dismiss an action for

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failure to prosecute or failure to comply with the Federal Rules of Civil Procedure or a court order.

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Fed. R. Civ. P. 41(b). While Rule 41(b) discusses such dismissal only in the context of a defense

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motion, both the Supreme Court and the Ninth Circuit have made clear that the rule also permits

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dismissal by a court sua sponte. See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962); Hells

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Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005). “A Rule

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41(b) dismissal must be supported by a showing of unreasonable delay.” Omstead v. Dell, Inc.,

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594 F.3d 1081, 1084 (9th Cir. 2010) (internal citation and quotation marks omitted). “In addition,

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the district court must weigh the following factors in determining whether a Rule 41(b) dismissal

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is warranted: ‘(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need

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to 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 sanctions.’” Id. (quoting

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Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)).

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III.

DISCUSSION
Plaintiff has unreasonably delayed disposition of this case by failing to appear for the Final

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Pretrial Conference or to respond to the Court’s Order to Show Cause Re: Dismissal. Moreover,

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four of the five factors listed above favor dismissal under Rule 41(b). With respect to the first
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factor, “[t]he public’s interest in expeditious resolution of litigation always favors dismissal.”

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

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omitted). The second factor also favors dismissal, as Plaintiff’s failure to appear at the Final

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Pretrial Conference or to respond to the Order to Show Cause Re: Dismissal has impeded the

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Court’s ability to move this case toward resolution and has required the Court to devote valuable

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resources to a case which Plaintiff apparently has no intention of prosecuting. The third factor,

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risk of prejudice to the defendant, is satisfied if the plaintiff’s conduct impairs the defendant’s

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ability to proceed to trial or threatens to interfere with a decision in the case. Pagtalunan, 291

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F.3d at 642. The factor is satisfied here, as the Court vacated the trial date based on Plaintiff’s

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failure to appear at the Final Pretrial Conference. The fourth factor, the public policy favoring

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United States District Court
Northern District of California

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disposition of cases on their merits, by definition weighs against dismissal under Rule 41(b).

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However, the fifth factor favors dismissal because less drastic sanctions are not available given

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Plaintiff’s failure to appear before the Court, respond to the Order to Show Cause Re: Dismissal,

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or give any indication that she intends to prosecute this action.
The Court suspects that the parties reached settlement in this case but failed to inform the

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Court of that circumstance. If that is what occurred, the parties’ discourtesy has resulted in the

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waste of judicial resources which could have been expended more productively. Whatever the

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cause of the parties’ failure to appear at the scheduled Final Pretrial Conference or Plaintiff’s

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failure to respond to the Order to Show Cause Re: Dismissal, the Court finds that dismissal is

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warranted under Rule 41(b) for the reasons discussed above.

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IV.

ORDER
This action is DISMISSED pursuant to Federal Rule of Civil Procedure 41(b) for failure to

comply with a Court order and failure to prosecute.
The Clerk shall close the file.

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Dated: April 9, 2018
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BETH LABSON FREEMAN
United States District Judge
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