Dharia v. Marriott Hotel Services Inc.

Filing 112

ORDER DENYING DEFENDANT'S MOTION RE PROCEDURE FOR RESOLUTION OF WAGE AND HOUR CLAIMS AND TO REQUEST A STATUS CONFERENCE OR, IN THE ALTERNATIVE, STATEMENT FROM PLAINTIFF (ECF No. 111 ) and DISMISSING ALL REMAINING CLAIMS FOR FAILURE TO PROSEC UTE PURSUANT TO FED. R. CIV. P. 41(b) - Signed by JUDGE HELEN GILLMOR on 4/13/2020. DEFENDANT'S MOTION RE PROCEDURE FOR RESOLUTION OF WAGE AND HOUR CLAIMS AND TO REQUEST A STATUS CONFERENCE OR, IN THE A LTERNATIVE, STATEMENT FROM PLAINTIFF (ECF No. 111 ) is DENIED. All remaining claims in the action are DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b). &n bsp; The Clerk of Court is DIRECTED to CLOSE THE CASE. (jo)COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
MARRIOTT HOTEL SERVICES, INC., )
doing business as Waikiki Beach )
Marriott Resort & Spa,
)
)
Defendant.
)
)
)
JATIN DHARIA,

CIV. NO. 18-00008 HG-WRP

ORDER DENYING DEFENDANT’S MOTION RE PROCEDURE FOR RESOLUTION OF
WAGE AND HOUR CLAIMS AND TO REQUEST A STATUS CONFERENCE OR, IN
THE ALTERNATIVE, STATEMENT FROM PLAINTIFF (ECF No. 111)
and
DISMISSING ALL REMAINING CLAIMS FOR FAILURE TO PROSECUTE
PURSUANT TO FED. R. CIV. P. 41(b)

BACKGROUND/PROCEDURAL HISTORY
PLAINTIFF’S AMENDED COMPLAINTS
On January 5, 2018, Plaintiff Jatin Dharia, with the
assistance of counsel, filed a Putative Class Action Complaint
for Damages and Declaratory and Other Relief.

(ECF No. 1).

On February 27, 2018, Defendant Marriott Hotel Services,
Inc., doing business as Waikiki Beach Marriott Resort & Spa,
filed a Motion for Partial Dismissal of Plaintiff’s Complaint.
(ECF No. 19).

Defendant asserted that Plaintiff failed to

provide sufficient allegations to state a claim on behalf of a
class.

(Id. at pp. 6-8).
1

On March 16, 2018, Plaintiff filed a First Amended
Complaint.

(ECF No. 25).

Plaintiff included additional facts in

support of his claims on behalf of a putative class in order to
address the Defendant’s Motion for Partial Dismissal.
On March 21, 2018, the Court held a Status Conference.
No. 29).

(ECF

At the Status Conference, Defendant withdrew its Motion

for Partial Dismissal in light of the filing of Plaintiff’s First
Amended Complaint.

The Parties met and conferred about the

putative class claims.

The Parties agreed that Plaintiff was

permitted leave to amend until April 5, 2018, for Plaintiff to
file a Second Amended Complaint in order to allow Plaintiff
another opportunity to properly plead his putative class action
claims.

(Id.)

On March 29, 2018, the Magistrate Judge issued the PARTIES’
JOINT STIPULATION REGARDING LITIGATION DEADLINES.

(ECF No. 30).

In the Stipulation, the Parties agreed that Plaintiff’s Second
Amended Complaint would be filed by April 5, 2018, and that
Defendant did not object to the scope of the potential class
proposed by the Plaintiff.

(Id. at p. 2).

In the Stipulation, Plaintiff stated that he intended to
file the Motion for Class Action Certification by June 8, 2018.
(Id. at 3.)
On April 3, 2018, Plaintiff filed a Second Amended
Complaint. (ECF No. 31).
Plaintiff’s Second Amended Complaint asserted two types of

2

claims against Defendant Marriott Hotel Services, Inc. d/b/a
Waikiki Beach Marriott Resort & Spa:
First, Plaintiff asserted individual unlawful discrimination
claims pursuant to the Americans with Disabilities Act (“ADA”).
Second, Plaintiff asserted putative class action wage and
hour claims on behalf of all employees employed by Defendant
pursuant to the Fair Labor Standards Act (“FLSA”) and Hawaii
state law.

Plaintiff brought these claims on behalf of “Line

worker positions in the Front Office” that included “Guest
Services Agents, employees who work Rooms Control, and Guest
Services Task.

These line workers are employed in hourly paid

positions and their job tasks include interacting with the
hotel’s customers and/or selling hotel customers additional
services.”

(Id. at ¶ 39).

Plaintiff defined a Proposed Class of

Front Office line worker positions as being from January 5, 2012
to present who were eligible to receive incentive payments.
at ¶ 48).

(Id.

Plaintiff estimated the Proposed Class consisted of

several hundred members.

(Id. at ¶ 49).

PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION AND DEADLINE TO
FILE MOTION FOR CLASS ACTION CERTIFICATION
On April 9, 2018, Plaintiff filed a MOTION FOR CONDITIONAL
CERTIFICATION AND NOTICE TO PUTATIVE PLAINTIFFS PURSUANT TO 29
U.S.C. § 216(b). (ECF No. 32).

Plaintiff sought permission to

notify Proposed Class members of the lawsuit.
On April 27, 2018, Defendant filed its OPPOSITION TO
3

PLAINTIFF’S MOTION FOR CONDITIONAL CERTIFICATION AND NOTICE TO
PUTATIVE PLAINTIFFS PURSUANT TO 29 U.S.C. § 216(b).
37).

(ECF No.

Defendant asserted that Plaintiff failed to meet his burden

for Court-supervised notice because he had not demonstrated that
the Proposed Class members were similarly situated to him.

(Id.

at p. 11).
On May 11, 2018, Plaintiff filed a Reply.

(ECF No. 38).

On May 24, 2018, Defendant filed a Sur-Reply.

(ECF Nos. 42-

1, 43).
On June 6, 2018, Plaintiff filed his Response to the SurReply with additional Declarations to support his Motion for
Court-supervised notice to the Proposed Class members.

(ECF No.

47).
On June 13, 2018, the Magistrate Judge issued the PARTIES’
STIPULATION REGARDING DEADLINE FOR PLAINTIFF TO FILE MOTION FOR
CLASS ACTION CERTIFICATION.

(ECF No. 49).

Pursuant to the

Stipulation, the Magistrate Judge set a deadline for Plaintiff to
file his Motion for Class Action Certification by July 18, 2018,
or 14 days following the District Court’s ruling on his Motion
for Conditional Certification, whichever is earlier.

(Id.)

On June 26, 2018, the Magistrate Judge issued Findings and
Recommendation to Grant Plaintiff’s Motion for Conditional Class
Certification and Notice to Putative Plaintiffs Pursuant to 29
U.S.C. § 216(b). (ECF No. 50).
The Magistrate Judge ruled that Plaintiff met his burden to

4

permit Court-supervised notice to the Proposed Class.
8).

(Id. at p.

The Magistrate Judge ordered Defendant to provide the names

of the Proposed Class members to Plaintiff within 20 days of the
District Court’s review of the Findings and Recommendation and
Ordered Plaintiff’s counsel to “expeditiously mail and email a
copy of the Notice to all prospective class members.”

(Id.)

Plaintiff’s Motion for Class Certification was due by July
18, 2018.
PARTIES’ ENGAGEMENT IN PRIVATE MEDIATION
On July 13, 2018, the Parties informed the Magistrate Judge
that they were seeking a stay of all deadlines because the
Parties were engaging in mediation.

(ECF No. 52).

The Parties

specifically sought an extension of the deadline for Plaintiff to
file his Motion For Class Action Certification.

(Id.)

The

Magistrate Judge informed the Parties that they should file a
Joint Stipulation.

(Id.)

On July 16, 2018, the Magistrate Judge approved the PARTIES’
STIPULATION REGARDING DEADLINE FOR PLAINTIFF TO FILE MOTION FOR
CLASS ACTION CERTIFICATION.

(ECF No. 53).

The Parties’

stipulation extended the deadline for filing the Motion for Class
Action Certification to August 17, 2018.

(Id. at p. 2).

On July 26, 2018, the Magistrate Judge approved the Parties’
Joint Stipulation to Stay All Deadlines Pending Mediation.
No. 54).

The Parties agreed to participate in a private

5

(ECF

mediation before (Ret.) Judge Riki May Amano on October 4, 2018,
in an effort to resolve all of the claims in the lawsuit.
Pursuant to the Parties’ agreement to engage in mediation, all
deadlines were stayed pending the October 4, 2018 mediation.
(Id.)

The Parties were ordered to inform the Court if mediation

was successful by October 11, 2018.

(Id. at p. 4).

The Parties

agreed that if mediation was not successful, Plaintiff’s Motion
for Class Action Certification was due by October 18, 2018.
(Id.)
On October 4, 2018, the Parties engaged in private
mediation.

At the end of the mediation session, Judge Amano

indicated that she would submit a settlement proposal to the
Parties for their consideration.

(Declaration of Eileen C. Zorc

(“Zorc Decl.”) at ¶ 3, attached to Motion to Enforce Settlement,
ECF No. 67-2).
On October 9, 2018, the Magistrate Judge issued a JOINT
STIPULATION TO CONTINUE DEADLINES TO SUBMIT JOINT NOTIFICATION OF
THE OUTCOME OF MEDIATION AND FOR PLAINTIFF TO FILE HIS MOTION FOR
CLASS ACTION CERTIFICATION AND ORDER.

(ECF No. 58).

The

deadline for Plaintiff to file the Motion For Class Action
Certification was extended to November 1, 2018.

(Id.)

The

Parties were ordered to file a Joint Status Report by October 25,
2018.

(Id.)

6

THE PARTIES’ SETTLEMENT CONTINUED THE DEADLINE FOR PLAINTIFF’S
MOTION FOR CLASS ACTION CERTIFICATION
On October 14, 2018, Judge Amano emailed the Parties a
Mediator’s Proposal.

(Proposal, attached as Ex. A to Motion to

Enforce Settlement, ECF No. 67-3).
On October 18, 2018, Judge Amano emailed the clarifications
of the Proposal.

(Proposal Clarifications, attached as Ex. B to

Motion to Enforce Settlement, ECF No. 67-4).
On October 22, 2018, Judge Amano emailed the Parties to
inform them that the Parties had each accepted the Mediator’s
Proposal as Clarified, and had reached a Settlement Agreement.
(Settlement Email, attached as Ex. C to Motion to Enforce
Settlement, ECF No. 67-5).
On October 25, 2018, the Parties informed the Court in a
Joint Status Report that the Parties reached a settlement
agreement “that will fully resolve the claims of the named
plaintiff, as well as the claims of the Rule 23 putative
class/FLSA collective action members.”

(ECF No. 59).

The

Parties stated that they would “submit their signed settlement
agreement, as well as the plaintiff’s unopposed motion for
preliminary approval and preliminary certification of the Rule 23
class/FLSA collective action by no later than November 28, 2018.”
(Id. at p. 4).
On November 28, 2018, the Parties filed another Joint Status
Report requesting additional time to finalize the settlement and

7

to file the Motion for Class Certification until December 21,
2018, which was granted.

(ECF No. 60).

On December 21, 2018, the Parties again requested additional
time to finalize the settlement, and to file the Motion for Class
Certification, until January 14, 2019.
Magistrate Judge granted the request.

(ECF No. 61).

The

(Id.)

PLAINTIFF DHARIA’S REFUSAL TO COMPLY WITH SETTLEMENT AGREEMENT
On January 8, 2019, Plaintiff’s counsel informed Defendant’s
counsel that circumstances have changed and that Plaintiff Dharia
“is taking the position that he is rescinding the agreement to
settle.”

(ECF No. 62 at p. 3).

On January 10, 2019, the Parties filed a Joint Status Report
informing the Court of Plaintiff Dharia’s position that he
refused to comply with the settlement.

(ECF No. 62).

The filing

asked for additional time for Plaintiff’s counsel to confer with
their client.

(Id.)

Plaintiff’s attorneys did not seek a

continuance of the January 14, 2019 deadline for Plaintiff to
file the Motion for Class Action Certification.

(Id.)

Defendant

requested a stay of all other deadlines to be continued at a
later date if necessary.

(Id.)

On January 22, 2019, a meeting was held with both
Plaintiff’s and Defendant’s counsel and Plaintiff Dharia.
discussed Plaintiff’s position that “he is rescinding the
settlement agreement.”

(ECF No. 64 at p. 3).

8

Plaintiff

They

explained that he was rescinding his agreement to the settlement
because “he wanted to be paid more for settlement of his
disability discrimination claims.”

(Zorc Decl. at ¶ 11, ECF No.

67-2).
On January 24, 2019, the Parties filed a Joint Status
Report, indicating that Defendant wishes to file a Motion to
Enforce the Settlement Agreement.

(ECF No. 64).

Plaintiff Dharia continued to refuse to comply with the
terms of the settlement.
DEFENDANT’S MOTION TO ENFORCE SETTLEMENT AGREEMENT AND
PLAINTIFF’S COUNSELS’ MOTION TO WITHDRAW
On February 19, 2019, Defendant filed a MOTION TO ENFORCE
SETTLEMENT AGREEMENT. (ECF No. 67).
On February 26, 2019, Plaintiff’s counsel filed a MOTION TO
WITHDRAW AS COUNSEL OF RECORD.

(ECF No. 70).

Plaintiff’s

counsel stated that there was a breakdown in the attorney-client
relationship.

(ECF No. 70-1 at p. 6).

The Magistrate Judge

stated that he would review the Motion following adjudication of
the Motion to Enforce Settlement Agreement.

(ECF No. 77).

On May 3, 2019, the Magistrate Judge entered a Findings and
Recommendation to Grant Defendant's Motion to Enforce Settlement
Agreement. (ECF No. 95).
On June 28, 2019, the District Court issued an ORDER
ADOPTING, AS MODIFIED, MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATION TO GRANT DEFENDANT MARRIOTT HOTEL SERVICES, INC.
9

d/b/a WAIKIKI BEACH MARRIOT RESORT & SPA’S MOTION TO ENFORCE
SETTLEMENT AGREEMENT (ECF No. 98).
PLAINTIFF’S REFUSAL TO COMPLY WITH THE COURT’S ORDERS AND THE
BINDING SETTLEMENT AGREEMENT
Despite the Court’s orders requiring Plaintiff to comply
with the terms of the binding, enforceable settlement agreement,
Plaintiff ignored the Court and refused to comply with the
settlement agreement.
On July 1, 2019, the Magistrate Judge issued an ORDER
GRANTING MOTION OF PLAINTIFF’S COUNSEL TO WITHDRAW AS COUNSEL OF
RECORD.

(ECF No. 99).

The Magistrate Judge granted Plaintiff’s

counsel’s Motion to Withdraw as Plaintiff Dharia’s counsel after
the District Court ruled that the settlement agreement was
binding and enforceable.

Plaintiff’s counsel no longer sought to

represent Plaintiff or pursue any claims on his behalf.
Plaintiff’s counsel was withdrawn from the case as of July 1,
2019.
It is a year and five months since the Parties’ October 22,
2018 settlement reached before Judge Amano.

The deadline of

January 14, 2019 (ECF No. 61) for Plaintiff to file the Motion to
Certify Class Action was fourteen months ago.
Plaintiff Dharia did not secure new counsel or file any
pleadings pro se.

No action has been taken by Plaintiff to seek

class certification, to reopen or to continue any deadlines, or
to proceed on any of his causes of action.
10

Plaintiff did not

engage in discovery and he did not file any motions.
DEFENDANT’S MOTION TO DISMISS ADA CLAIMS
Plaintiff refused to accept payment for his settled ADA
claims pursuant to the Magistrate Judge’s May 3, 2019 Findings
and Recommendation To Grant Defendant’s Motion To Enforce
Settlement Agreement (ECF No. 95) and the District Court’s June
28, 2019 Order Adopting, as Modified, The Magistrate Judge’s
Findings and Recommendation.

(ECF No. 98).

Defendant’s attorney made numerous efforts to provide
payment to Plaintiff.

On July 24, 2019, Defendant’s counsel met

with Plaintiff Dharia and presented him the payments owed for his
ADA claims pursuant to the settlement agreement. (Declaration of
Eileen C. Zorc, attached to Def.’s Motion to Dismiss Settled ADA
Claims at ¶ 5, ECF No. 100-2).

Plaintiff refused to accept

payment and refused to sign a stipulation to dismiss the ADA
claims.

(Id. at ¶ 6).

Defendant’s counsel repeatedly emailed, called, and wrote to
Plaintiff urging him to comply with the settlement agreement and
accept payment between August 2019 and November 2019.
6-18).

(Id. at ¶¶

Plaintiff refused to comply with the Court’s orders and

the settlement agreement.
On January 22, 2020, Defendant filed DEFENDANT MARRIOTT
HOTEL SERVICES, INC. d/b/a/ WAIKIKI BEACH MARRIOTT RESORT & SPA’S
MOTION TO DISMISS SETTLED ADA CLAIMS UNDER RULE 41(b).

11

(ECF No.

100).
On January 28, 2020, the Court issued a briefing schedule
and hearing date on the Motion.

(ECF No. 106).

Plaintiff was ordered to file his response on or before
February 18, 2020, prior to the hearing scheduled for February
25, 2020.

(Id.)

Plaintiff, proceeding pro se, did not file a written
response.
On February 25, 2020, the Court held the hearing.
107).

Plaintiff appeared pro se at the hearing.

(ECF No.

After

discussion, Plaintiff indicated that he would now agree to accept
payment for his individual ADA claims pursuant to the Parties’
settlement agreement.

Plaintiff indicated that he still had not

retained counsel and did not have a plan as to how to move
forward with the remaining putative class action wage and hour
claims.
Following the hearing, Plaintiff accepted the payment
rendered by Defendant for his ADA claims.
DEFENDANT’S MOTION RE: REMAINING CLASS ACTION CLAIMS
On March 13, 2020, the Court issued an ORDER GRANTING
DEFENDANT MARRIOTT HOTEL SERVICES, INC. d/b/a/ WAIKIKI BEACH
MARRIOTT RESORT & SPA’S MOTION TO DISMISS SETTLED ADA CLAIMS
UNDER RULE 41(b).

(ECF No. 110).

On March 16, 2020, Defendant filed DEFENDANT’S MOTION RE

12

PROCEDURE FOR RESOLUTION OF WAGE AND HOUR CLAIMS AND TO REQUEST A
STATUS CONFERENCE OR, IN THE ALTERNATIVE, STATEMENT FROM
PLAINTIFF.

(ECF No. 111).

Defendant requests that this Court

hold another hearing as to the pro se Plaintiff’s putative class
action wage and hour claims, which he has not pursued.
The Motion for Class Action Certification was due January
14, 2019.

More than a year later, no Motion for Class Action

Certification as been filed.

Plaintiff has taken no steps to

pursue the remaining putative class action claims with any
diligence.

Plaintiff is unable to pursue the class action claims

pro se and has consistently failed to comply with Court orders.
Plaintiff still has not retained counsel to pursue the class
action claims nine months after his previous counsel withdrew
from the litigation.
DEFENDANT’S MOTION RE PROCEDURE FOR RESOLUTION OF WAGE AND
HOUR CLAIMS AND TO REQUEST A STATUS CONFERENCE OR, IN THE
ALTERNATIVE, STATEMENT FROM PLAINTIFF (ECF No. 111) is DENIED.
All remaining claims in the action are DISMISSED WITHOUT
PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b).
The Clerk of Court is DIRECTED to CLOSE THE CASE.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 41(b) provides that if the
plaintiff fails to prosecute or comply with these rules or a
court order, a defendant may move to dismiss the action or any

13

claim against it.

Fed. R. Civ. P. 41(b).

It is well settled, however, that the District Court has the
“inherent power” to dismiss an action pursuant to Rule 41(b) due
to a plaintiff’s failure to prosecute or comply with a court
order.

Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962);

Henderson v. Duncan, 779 F.2d 1421, 1425 (9th Cir. 1986).
ANALYSIS
District Courts have wide discretion in determining whether
to dismiss a case or claims pursuant to Fed. R. Civ. P. 41(b).
Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976).
In evaluating whether to dismiss an action for failure to
prosecute or failure to comply with a Court order pursuant to
Fed. R. Civ. P. 41(b), the District Court considers five factors:
(1)

the public’s interest in expeditious resolution of
litigation;

(2)

the court’s need to manage its docket;

(3)

the risk of prejudice to the defendant;

(4)

the public policy favoring disposition of cases on
their merits; and,

(5)

the availability of less drastic sanctions.

Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984).
1.

Expeditious Resolution Of The Litigation

A court may dismiss a case for failure to comply with a
court’s order or for lack of prosecution where the plaintiff has

14

unreasonably delayed proceedings.

In re Eisen, 31 F.3d 1447,

1451 (9th Cir. 1994).
Plaintiff initiated this action more than two years ago in
January 2018.

With the assistance of counsel, Plaintiff settled

his claims before a private mediator on October 22, 2018.
Plaintiff Dharia refused to comply with the settlement agreement.
Plaintiff’s counsel was provided with months of deadline
extensions in order to confer with their client about his
compliance with the settlement agreement, and he continued to
refuse to comply.
In February 2019, Defendant sought to enforce the settlement
agreement.

The Court utilized its resources to review

Defendant’s motion and the Parties’ settlement agreement.

The

Court determined there was an enforceable settlement agreement,
and it ordered Plaintiff to comply with the terms of the
settlement agreement.
Plaintiff ignored the Court’s June 2019 Order requiring him
to comply with the settlement.

Defendant’s counsel attempted to

provide Plaintiff with payment for the settlement numerous times
between June 2019 and November 2019.

Plaintiff refused to accept

payment.
Plaintiff took no other action.

The many attempts by

Defendant’s counsel to provide the Plaintiff with the settlement
payments for the ADA claims were ignored.

He did not secure

other counsel or otherwise attempt to prosecute his claims.

15

Plaintiff was required to file the Motion for Class Action
Certification by January 14, 2019 (ECF No. 61).

No motion has

ever been filed.
Plaintiff’s failure to take action for more than a year is a
sufficient basis to dismiss a case pursuant to Fed. R. Civ. P.
41(b).

Baeza v. Baca, 700 Fed. Appx. 657, 658 (9th Cir. 2017)

(explaining that the Ninth Circuit Court of Appeals has affirmed
a dismissal for failure to prosecute after the plaintiff failed
to take action for nine months, citing Alexander v. Pac. Mar.
Ass’n, 434 F.2d 281, 283-84 (9th Cir. 1970)).
The public’s interest in expeditious resolution favors
dismissal pursuant to Fed. R. Civ. P. 41(b).

Yourish v. Cal.

Amplifier, 191 F.3d 983, 990 (9th Cir. 1999).
2.

Court’s Need To Manage Its Docket

District courts have inherent power to control their
dockets.

In the exercise of that power, the trial courts may

impose sanctions, including dismissal for failure to comply with
court orders or failure to timely prosecute claims.

Thompson v.

Hous. Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986).
It is “incumbent” upon courts to manage their dockets without
being subject to routine noncompliance of litigants.

Pagtalunan

v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).
Dismissing the remaining putative class action claims will
prevent substantial further delay in this case.

16

Plaintiff has

not retained new counsel and is unable to pursue claims on behalf
of others.

It is well established that the privilege to

represent oneself pro se provided by 28 U.S.C. § 1654 is personal
to the litigant and does not extend to a putative class, other
parties, or other entities.

Joseph v. Amazon.com, Inc., 46

F.Supp.3d 1095, 1101 (W.D. Wash. 2014) (citing Simon v. Hartford
Life, Inc., 546 F.3d 661, 663 (9th Cir. 2008)).
Defendant’s attorney’s Motion indicates that she has been in
contact with Plaintiff’s former counsel.

The Motion states that

Plaintiff reached out to his former counsel and that they would
seek to appear in the case “for the sole purpose of finalizing
the settlement of the federal and state wage and hour claims
asserted in the case and seeking the Court’s approval of the
agreement on those claims.”

(Motion at p. 3, ECF No. 111).

The

Motion also states, however, that there are questions as to
whether Plaintiff intends to cooperate as he believes the
settlement agreement is not enforceable.
Plaintiff’s former counsel may not appear for a limited
purpose.

They withdrew from the case in July 2019.

They have

not filed a Motion seeking to appear on behalf of the Plaintiff
or on behalf of any other named plaintiff seeking to represent
the putative class.
Plaintiff’s former counsel are well aware that the Motion
for Class Action Certification was required to be filed by
January 14, 2019, prior to their withdrawal.

17

(ECF No. 61).

No

Motion was filed.
As Defendant’s Motion explains, the remaining putative class
action claims would require substantial further litigation.
There are questions as to whether Plaintiff is even seeking to
participate in the case as to the remaining claims.

There has

never been a Motion for Class Action Certification filed pursuant
to Fed. R. Civ. P. 23 since the filing of the case on January 5,
2018.

There has been no approval of the settlement by the

District Court as to the wage and hour claims.

Notice would be

required to be sent to the putative class, along with a fairness
hearing, appointment of a claims administrator, and appointment
of class counsel.

None of which may be accomplished by a pro se

Plaintiff, not to mention a pro se Plaintiff who has failed to
prosecute his claims and refused to comply with Court orders.
It is not the responsibility of the Court to litigate
Plaintiff’s claims on his behalf.

It is Plaintiff’s

responsibility to move his action toward disposition at a
reasonable pace and he has failed to do so.

Morris v. Morgan

Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991).
Court’s responsibility to manage its Docket.

It is the

Dismissal of the

remaining claims pursuant to Fed. R. Civ. P. 41(b) is necessary
in order to manage the Court’s Docket.

Hunter v. Sandoval, 2018

WL 6570870, *2 (C.D. Cal. Dec. 12, 2018).

18

3.

Risk Of Prejudice To Defendant

The Ninth Circuit Court of Appeals has explained that the
law presumes injury from unreasonable delay even in the absence
of actual prejudice.

In re Eisen, 31 F.3d at 1453.

Whether

prejudice is sufficient to support an order of dismissal is
judged, in part, on plaintiff’s excuse for failing to comply with
the Court’s orders or failing to timely prosecute the case.
Malone v. U.S. Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987).
Plaintiff has no credible reason for failing to timely
prosecute the case.

Plaintiff did not agree with the Court’s

orders and chose not to comply with them.

Plaintiff has also

missed filing deadlines and failed to communicate with counsel
and the Court.
Plaintiff’s actions and delay have resulted in prejudice to
Defendant.
4.

Pagtalunan, 291 F.3d at 642.
The Public Policy Favoring Disposition On The Merits

Public policy favors disposition of cases on the merits and
weighs against involuntary dismissal.

Morris, 942 F.2d at 652.

This factor nearly always weighs in favor of a plaintiff who
wishes to proceed.

Here, there is no such plaintiff.

In

addition, this factor would be substantially outweighed by the
delay, risk of prejudice, and waste of resources that would be
incurred by allowing the action to remain on the Court’s docket.
Zhiqiang Cao v. U.S. Bancorp, N.A., 2011 WL 3794949, *3 (N.D.
19

Cal. Aug. 26, 2011).
5.

The Availability Of Less Drastic Sanctions

A District Court must consider the adequacy of less drastic
sanctions before dismissing a case or claim.
131-32.

Malone, 833 F.2d at

Sanctions lesser than dismissal would be ineffective in

this case.

Plaintiff has failed to comply with Court orders and

Court issued briefing schedules.

Plaintiff is proceeding pro se.

He has been given ample time to secure representation and he has
failed to do so.

Plaintiff engaged in a binding settlement and

refused to comply with the agreement.

He ignored the Court’s

order requiring him to comply with the terms of the settlement.
There are no less drastic sanctions that would allow the case to
proceed effectively.
The Court finds that dismissal without prejudice, rather
than with prejudice, is the least drastic sanction available.
Arellano v. T-Mobile USA, Inc., 2012 WL 3877668, at *2 (N.D. Cal.
Sept. 6, 2012) (finding that Rule 41(b) allows for dismissal
without prejudice where dismissal with prejudice would be too
harsh a sanction).
//
//
//
//
//

20

CONCLUSION
DEFENDANT’S MOTION RE PROCEDURE FOR RESOLUTION OF WAGE AND
HOUR CLAIMS AND TO REQUEST A STATUS CONFERENCE OR, IN THE
ALTERNATIVE, STATEMENT FROM PLAINTIFF (ECF No. 111) is DENIED.
All remaining claims in the action are DISMISSED WITHOUT
PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b).
The Clerk of Court is DIRECTED to CLOSE THE CASE.
IT IS SO ORDERED.
DATED: April 13, 2020, Honolulu, Hawaii.

Jatin Dharia v. Marriott Hotel Services, Inc. d/b/a Waikiki Beach
Marriott Resort & Spa, Civ. No. 18-00008 HG-WRP; ORDER DENYING
DEFENDANT’S MOTION RE PROCEDURE FOR RESOLUTION OF WAGE AND HOUR
CLAIMS AND TO REQUEST A STATUS CONFERENCE OR, IN THE ALTERNATIVE,
STATEMENT FROM PLAINTIFF (ECF No. 111) and DISMISSING ALL
REMAINING CLAIMS FOR FAILURE TO PROSECUTE PURSUANT TO FED. R.
CIV. P. 41(b)
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