Clem v. Barneys New York, Inc., No. 4:2011cv03952 - Document 48 (N.D. Cal. 2012)
Court Description: ORDER GRANTING 45 MOTION TO DISMISS. Signed by Judge Claudia Wilken on 11/15/2012. (ndr, COURT STAFF) (Filed on 11/16/2012)
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Clem v. Barneys New York, Inc. Doc. 48 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 OKSANA CLEM, 5 No. C 11-3952 CW Plaintiff, 6 ORDER GRANTING MOTION TO DISMISS (Docket No. 45) v. 7 BARNEYS NEW YORK, INC., 8 Defendant. ________________________________/ 9 United States District Court For the Northern District of California 10 Defendant Barneys New York, Inc. moves to dismiss Plaintiff 11 Oksana Clem’s complaint for failure to prosecute under Rule 41(b) 12 and for failure to cooperate in discovery under Rule 37(d). 13 Plaintiff, proceeding pro se, has not filed an opposition. 14 the reasons set forth below, the Court grants the motion. 15 For BACKGROUND 16 Ms. Clem was terminated from her employment as a sales clerk 17 at Barneys in January 2011. 18 11, 2011, she filed a complaint in this Court charging Barneys 19 with wrongful termination, conversion, fraud, defamation, and 20 numerous violations of the California Fair Employment and Housing 21 Act, Cal. Gov’t Code § 12940 et seq., and the California Labor 22 Code. 23 Compl. ¶ 33, Docket No. 1. On August Id. ¶¶ 35-140. In June 2012, after the parties failed to meet the Court’s 24 April 2012 deadline for court-connected mediation, Plaintiff’s 25 counsel sought to withdraw from the case. 26 of Counsel, Docket No. 24. 27 counsel’s request to withdraw would not be granted until the 28 parties had first attempted to mediate the dispute in good faith, Notice of Substitution On June 15, the Court ordered that Dockets.Justia.com 1 as required by the Court’s original case management order. 2 No. 27. 3 in the upcoming mediation scheduled for June 19. 4 afternoon of June 18, however, Plaintiff’s counsel notified the 5 Court that Plaintiff would not be able to attend the mediation. 6 Docket No. 28. 7 attend. 8 phone conference for the following week so that the parties could 9 reschedule. United States District Court For the Northern District of California 10 Docket The Court instructed Plaintiff’s counsel to participate Id. Id. On the He offered no excuse for Plaintiff’s inability to The ADR department canceled the mediation and set a Docket No. 30. On June 20, 2012, the Court issued an order directing 11 Plaintiff to participate in the phone conference and to attend the 12 rescheduled mediation. 13 specifically noted that if Plaintiff failed to participate in 14 either the phone conference or the mediation, her case would be 15 dismissed for failure to prosecute. 16 and attempted to mediate the case the following month but failed 17 to resolve their dispute. 18 July 31, the Court granted Plaintiff’s counsel’s request to 19 withdraw and stated in its order, “If Plaintiff wishes to pursue 20 this litigation, she will have to retain new counsel or represent 21 herself in pro per.” 22 that Plaintiff’s failure to appear at the next Case Management 23 Conference would result in her case being dismissed for failure to 24 prosecute. 25 appeared at the CMC on August 29, 2012, representing herself. 26 Docket No. 44. 27 deadline of October 26, 2012, and a deadline for filing Id. at 2. Docket No. 31, at 2. Id. The order The parties rescheduled Docket No. 37. Docket No. 39, at 1. Two weeks later, on The Court also stated Pursuant to this instruction, Plaintiff At the CMC, the Court set a fact discovery 28 2 1 dispositive motions of November 29, 2012. 2 denied Plaintiff’s request to appoint counsel. 3 Id. The Court also Id. On September 4, 2012, Defendant’s counsel emailed Plaintiff 4 to schedule her deposition and to request that she supplement her 5 discovery responses and disclosures pursuant to Rule 26. 6 Declaration of Harold M. Brody ¶ 11. 7 respond, Defendant’s counsel emailed Plaintiff again on September 8 10. 9 would not appear at any deposition without counsel. Id. ¶ 12. When Plaintiff failed to This time, Plaintiff responded by stating that she Id. ¶¶ 12-13. United States District Court For the Northern District of California 10 Defendant’s counsel replied on September 12, asserting that 11 Plaintiff’s “response was unacceptable and contrary to the 12 representations she made at the CMC that she would represent 13 herself.” 14 of Deposition that set Plaintiff’s deposition for October 2. 15 After Plaintiff failed to respond to the notice, Defendant’s 16 counsel emailed Plaintiff again on September 22 to tell Plaintiff 17 that if she failed to respond by September 24, he would assume 18 that she refused to attend the deposition. 19 counsel also notified Plaintiff that her failure to respond would 20 prompt him to file a motion to dismiss. 21 warning, Plaintiff again failed to respond. 22 Id. ¶ 14. The email also included an attached Notice Id. Id. Id. Defendant’s Despite this Id. ¶ 19. On September 27, Defendant’s counsel emailed Plaintiff to 23 confirm his understanding that she would not be attending the 24 noticed deposition and to notify her that he was canceling the 25 deposition. 26 sought to schedule a telephone conference to discuss outstanding 27 discovery issues. Id. ¶ 17. Id. In his email, Defendant’s counsel also Defendant’s counsel then tried to reach 28 3 1 Plaintiff by phone that same day but did not receive an answer. 2 Id. ¶ 18. 3 On October 8, Defendant filed this motion to dismiss. As of 4 that date, Plaintiff had not communicated with Defendant’s counsel 5 since her September 10 email. 6 7 Id. ¶ 19. LEGAL STANDARD Under Federal Rule of Civil Procedure 41(b), a district court 8 may dismiss a case if “the plaintiff fails to prosecute or to 9 comply with these rules or a court order.” Similarly, Rule 37(d) United States District Court For the Northern District of California 10 permits the court to impose sanctions, including dismissal, for 11 various reasons, including a party’s failure to appear for a 12 noticed deposition. 13 as a sanction, the district court must weigh several factors: the 14 public’s interest in expeditious resolution of litigation; the 15 court’s need to manage its docket; the risk of prejudice to the 16 defendants; the public policy favoring disposition of cases on 17 their merits; and the availability of less drastic sanctions.” 18 Dahl v. City of Huntington Beach, 84 F.3d 363, 366 (9th Cir. 19 1996). In either case, “[b]efore imposing dismissal 20 A dismissal for failure to prosecute is generally with 21 prejudice and operates as an adjudication on the merits for 22 purposes of preclusion. 23 Schimmels, 127 F.3d 875, 884 (9th Cir. 1997); Johnson v. U.S. 24 Dep’t of the Treasury, 939 F.2d 820, 825 (9th Cir. 1991). 25 this is such a harsh remedy, the district court should first 26 consider less drastic alternatives to dismissal with prejudice. 27 McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). 28 should also consider the strength of a plaintiff’s case, if such See Fed. R. Civ. P. 41(b); In re 4 Because The court 1 information is available, because the harshness of a dismissal is 2 directly proportionate to the likelihood that the plaintiff would 3 prevail if permitted to go forward. 4 district court raises the issue of Rule 41(b) dismissal sua 5 sponte, it must warn the plaintiff before dismissing the suit; 6 however, “[t]here is no warning requirement when dismissal follows 7 a noticed motion under Rule 41(b).” 8 Co., 942 F.2d 648, 652 (9th Cir. 1991). 9 Id. at 1178-79. When the Morris v. Morgan Stanley & DISCUSSION United States District Court For the Northern District of California 10 The Court recognizes that it must be “sensitive to the 11 challenges faced by pro se litigants unfamiliar with the judicial 12 process,” particularly on a motion to dismiss for failure to 13 prosecute. 14 (N.D. Cal). 15 Plaintiff on three separate occasions that her case would be 16 dismissed if she continued to ignore her responsibilities in this 17 litigation. 18 however -- and the additional notice provided by Defendant’s 19 motion -- Plaintiff continues to neglect her duty to comply with 20 court rules and to prosecute her case with “reasonable diligence.” 21 Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976). 22 This ongoing neglect makes dismissal an appropriate sanction in 23 this case. 24 Redmond v. S.F. Police Dept., 2010 WL 2573978, at *5 For precisely this reason, the Court has warned Docket Nos. 31, 36, 39. Despite these warnings, The first two factors of the Rule 41(b) standard -- the 25 public’s interest in expeditious litigation and the court’s 26 interest in managing its docket -- both weigh in favor of 27 dismissal here. 28 deposition and failure to respond to other discovery requests has Plaintiff’s unwillingness to attend her noticed 5 frustrated the Court’s original October 26 discovery deadline. 2 Indeed, discovery has been stalled since the Court issued its 3 revised scheduling order in late August. 4 for dispositive motions fast approaching and Defendant still 5 unable to take discovery, Plaintiff’s non-responsiveness threatens 6 to further undermine the Court’s scheduling order and delay these 7 proceedings. 8 justifies dismissal here under the first two Rule 41(b) factors. 9 Cf. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) 10 United States District Court For the Northern District of California 1 (holding that regular delays and “routine noncompliance of 11 litigants” frustrate the public’s interest in expeditious 12 litigation and the court’s control over its docket). 13 Now, with the deadline Accordingly, Plaintiff’s continued recalcitrance Similarly, Plaintiff’s unwillingness to provide a valid 14 justification for her noncompliance also weighs in favor of 15 dismissal under the third factor of the Rule 41(b) analysis. 16 Ninth Circuit has recognized that a defendant suffers prejudice 17 when a plaintiff consistently delays litigation and disregards 18 court orders without providing a legitimate reason for doing so. 19 Yourish v. Cal. Amplifier, 191 F.3d 983, 991-92 (9th Cir. 1999) 20 (holding that the plaintiff’s “paltry excuse” for noncompliance 21 with the court’s order “indicates that there was sufficient 22 prejudice to Defendants from the delay that this factor also 23 strongly favors dismissal”). 24 flouting the Court’s scheduling order and refusing to cooperate 25 with opposing counsel is that she will not sit for a deposition 26 without a lawyer. 27 acceptable excuse for avoiding her deposition -- and the Court has 28 made clear that it is not -- this still would not justify The Here, Plaintiff’s only excuse for Brody Decl. ¶ 13. 6 Even if this were an 1 Plaintiff’s unwillingness to supplement her disclosures or her 2 apparent refusal to communicate with Defendant’s counsel. 3 repeated failures to respond to discovery requests and abide by 4 court deadlines have imposed sufficient costs on Defendant to 5 constitute prejudice and justify dismissal. 6 Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 7 1227-28 (9th Cir. 2006) (holding that “[f]ailing to produce 8 documents” and “unreasonable delay” both inform the court’s 9 finding of prejudice). United States District Court For the Northern District of California 10 These See In re Finally, applying the fourth and fifth factors of the 11 analysis also counsels in favor of dismissal. 12 unwillingness to participate in discovery prevents the disposition 13 of this case on its merits. 14 sought less drastic measures by warning Plaintiff multiple times 15 that her case could be dismissed if she continued to disregard her 16 duty to prosecute her claims diligently. Plaintiff’s Moreover, the Court has already 17 Although courts often consider the strength of a plaintiff’s 18 case before dismissing for failure to prosecute, McHenry, 84 F.3d 19 at 1178-79, Plaintiff’s abdication of her discovery obligations 20 here -- and her failure to respond to Defendant’s motion -- has 21 left a sparse evidentiary record that makes it difficult to 22 evaluate the merits of her case. 23 highlights several potential shortcomings in Plaintiff’s case, 24 Mot. Dismiss at 10, the Court need not rely on these to find that 25 Rule 41(b) is dismissal is appropriate here. 26 failures to comply with her litigation responsibilities and with 27 the Court’s scheduling order provide sufficient justification for 28 dismissing her case. While Defendant, in its brief, 7 Plaintiff’s repeated 1 2 CONCLUSION For the reasons set forth above, the Court GRANTS Defendant’s 3 motion to dismiss for failure to prosecute and failure to 4 cooperate in discovery (Docket No. 45). 5 judgment and close the file. 6 costs. 7 The Clerk shall enter The parties shall bear their own IT IS SO ORDERED. 8 9 United States District Court For the Northern District of California 10 Dated: 11/16/2012 CLAUDIA WILKEN United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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