Hogue et al v. Pacific Composites, Inc. et al

Filing 42

Order granting 8 Motion to Dismiss filed by Joannalynn Fullerton with prejudice. Signed by Chief Judge Frances M. Tydingco-Gatewood on 9/13/2016. (fad, )

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THE DISTRICT COURT OF GUAM

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JARRET HOGUE AND GELYN GAMBITO,

CIVIL CASE NO. 16-00041

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Plaintiffs,
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vs.

DECISION AND ORDER GRANTING
DEFENDANT JOANNALYN
FULLERTON’S MOTION TO DISMISS

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PACIFIC COMPOSITES, INC. dba
SHIPRIGHT! and BOATSHOP,
AMANDA YOUNG, CHRISTOPHEAR
YOUNG, MOYLAN’S INSURANCE
UNDERWRITERS, and, in her personal
capacity, JOANNALYN FULLERTON,

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Defendants.

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Before the court is Defendant Joannalyn Fullerton’s Motion to Dismiss (ECF No. 8).

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After reviewing the parties’ submissions, and relevant caselaw and authority, the court hereby

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GRANTS Fullerton’s Motion to Dismiss for the reasons stated herein. 1

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This matter was referred to Magistrate Judge Manibusan on August 15, 2016. The referral with respect to
ECF No. 8 is now moot.
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I. BACKGROUND

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On May 9, 2016, Plaintiffs Jarret Hogue and Gelyne Gambito filed a Complaint against

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Pacific Composites, Inc., d.b.a. Shipright! and Boatshop, Amanda Young, Christophear Young,

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Moylan’s Insurance Underwriters, Inc., and Joannalynn Fullerton (“Fullerton”). Compl., ECF

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No. 1. The Complaint stems from allegations of employment discrimination and retaliation, and

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includes a claim for Intentional Infliction of Emotional Distress against Fullerton in her personal

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capacity. Compl., ECF No. 1.

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Fullerton filed a motion to dismiss which contends that Plaintiffs’ Complaint against her

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fails under Federal Rule of Civil Procedure (“FRCP”) 12(b)(1) due the doctrine of “judicial

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immunity” and lack of subject matter jurisdiction. Mot. Dismiss 1, ECF No. 8. She also argues

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that Plaintiffs’ Intentional Infliction of Emotional Distress cause of action fails to state a claim

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under FRCP 12(b)(6). Mot. Dismiss 1, ECF No. 8. In response, Plaintiffs filed an “Opposition”

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for the purpose of “present[ing] evidence to counter . . . Fullerton’s assertion of facts within her

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Motion to Dismiss . . . [but] otherwise withdraw their Complaint against Fullerton.” Opp’n 1,

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ECF. No. 26. 2 Despite this assertion, Plaintiffs have not filed a formal dismissal. Thus, the

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court will treat the motion unopposed although ECF No. 26 is stylized as an “Opposition.”

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II. DISCUSSION

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A court has the inherent power to dismiss a case for lack of prosecution. Ash v. Cvetkov,

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739 F.2d 493, 496 (9th Cir. 1984). Before granting an unopposed motion to dismiss, the court

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must consider the following factors: “(1) the public’s interest in expeditious resolution of

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Attached to Plaintiff’s Opposition is a Declaration by Plaintiff’s counsel, and email between Plaintiffs’
counsel and Guam Department of Labor Director Maria Connelly, and a Declaration of Curtis Ladd Bell. Opp’n
Decl. Bell; Exs. 1-2, ECF 26. These Declarations and Exhibits purport to counter Fullerton’s Declaration
accompanying her Motion to Dismiss stating that she was “told not to accept for filing a GWC 201 that was not
accompanied by a GWC 202.” Opp’n Decl. Bell; Exs. 1-2, ECF No. 26; Decl. Fullerton ISO Opp’n, ECF No. 9.
The Opposition counters that Fullerton was “specifically instructed by her supervisor . . . to accept the GWC-201
under such circumstances.” Opp’n Decl. Bell; Exs. 1-2, ECF No. 26.
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litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendant; (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.” See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (quoting Henderson v.

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Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)); Edmund v. Guam & Guam, Inc., No. CV 15-

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00029, 2016 WL 1573445, at *2 (D. Guam Apr. 19, 2016). A district court is not required to

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examine the merits of an unopposed motion to dismiss before it is granted. See Ghazali, 46 F.3d

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at 54 (the Ninth Circuit refused to extend to motions to dismiss the requirement that a district

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court examine the merits of an unopposed motion for summary judgment before granting it

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pursuant to a local rule). Furthermore, “[f]ailure to follow a district court’s local rules is a proper

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ground for dismissal.” Id. (citation omitted). Civil Local Rule 7 expressly provides that “an

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opposition must be served and filed within twenty-one (21) days of the filing of the motion.”

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CVLR 7(f) (2015).

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After reviewing the record, the court finds that the first, second, and third factors weigh

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in favor of dismissal. As to the first factor, “the public's interest in expeditious resolution of

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litigation always favors dismissal.” Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir.

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1999). Regarding the second factor, great deference is given to a district court judge with respect

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to the imposition of sanctions such as dismissal because that judge is “in a superior position to

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evaluate the effects of delay on her docket.” See id. at 991 (citations omitted). Granting the

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unopposed motion to dismiss will benefit this court’s ability to manage its docket. Thus, the first

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two factors favor dismissal.

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With respect to the third factor, “litigation is better conducted when the dispute is fresh”

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because unnecessary delay inherently risks prejudice to the Defendant because there is a risk that

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memories will fade or evidence will become stale. See Sibron v. New York, 392 U.S. 40, 57

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(1968). Plaintiffs express their intention to withdraw the “Opposition.” Opp’n 1, ECF No. 26.
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Local Rule 7(f) required Plaintiffs to file an opposition no later than twenty-one days after July

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1, 2016. See CVLR 7; see also Mot. Dismiss, ECF No. 8. The “Opposition” was untimely for

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CVLR 7 purposes because it was not filed until July 25, 2016. See Opp’n, ECF No. 26.

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Furthermore, Fullerton should not be forced to continue litigating against the Plaintiffs on a

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claim that the Plaintiffs have expressly abandoned. Thus, the third factor favors dismissal.

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Although the fourth factor favors disposition of cases on their merits, this policy is

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insufficient to overcome the first three factors that weigh in favor of dismissal. Additionally,

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even though dismissing Plaintiffs’ claim against Fullerton is a harsh measure, Plaintiffs

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expressed their desire to withdraw these claims.

Thus, less harsh sanctions need not be

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considered. Accordingly, the court finds that the majority of factors favor dismissal of Plaintiffs’

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claims against Fullerton.

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III. CONCLUSION
For the foregoing reasons, the court hereby GRANTS Fullerton’s Motion to Dismiss.
Plaintiffs’ claims against her are hereby dismissed with prejudice.

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SO ORDERED.

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/s/ Frances M. Tydingco-Gatewood
Chief Judge
Dated: Sep 13, 2016

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