-RBB Rubin v. Kaiser Foundation Health Plan, Inc. et al, No. 3:2010cv00407 - Document 17 (S.D. Cal. 2011)
Court Description: ORDER granting 14 Motion to Dismiss and finding as moot 2 Motion to Dismiss: This action is dismissed without prejudice. Signed by Judge M. James Lorenz on 1/31/11. (lmt)
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-RBB Rubin v. Kaiser Foundation Health Plan, Inc. et al Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVEN A. RUBIN, 12 Plaintiff, 13 v. 14 KAISER FOUNDATION HEALTH PLAN, INC., 15 Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) Civil No. 10cv407-L(RBB) ORDER DISMISSING ACTION WITHOUT PREJUDICE Defendant filed a Motion to Dismiss for Plaintiff’s Failure to Prosecute and/or to Obey 18 Court’s May 24, 2010 Order (“Motion”). Plaintiff did not file an opposition. The Motion came 19 on for a hearing on January 31, 2011 at 10:30 a.m. Only Seth L. Neulight, Esq., counsel for 20 Defendant, appeared at the hearing. For the reasons which follow, Defendant’s Motion is 21 GRANTED and this action is DISMISSED WITHOUT PREJUDICE. Defendant’s Motion to 22 Dismiss Plaintiff’s Complaint or, Alternatively, for a More Definite Statement is DENIED as 23 moot. 24 This employment termination action was initially filed in State court and removed to this 25 court based on federal question jurisdiction under 28 U.S.C. Section 1331, because Plaintiff 26 alleged a claim under Family and Medical Leave Act, 29 U.S.C. § 2606 et seq. Plaintiff’s state 27 law claims were removed based on supplemental jurisdiction under 28 U.S.C. Section 1367. 28 / / / / / 10cv407 Dockets.Justia.com 1 After removal, Defendant filed a motion to dismiss for failure to state a claim under Rule 2 12(b)(6) or in the alternative for a more definite statement under Rule 12(e). Plaintiff did not file 3 an opposition, and the motion was submitted on May 3, 2010 as unopposed. On May 4, 2010 4 Plaintiff filed a notice of non-opposition, which stated in its entirety: 5 6 Plaintiff will not be filing opposition to Defendant's motion, per se; in light of Defendant's arguments, Plaintiff will instead be preparing and filing an amended pleading in advance of the scheduled hearing date. 7 On May 10, 2010 Plaintiff filed an amended complaint. On May 12, 2010 the court 8 issued an order to show cause. Because the amended complaint was untimely under Rule 9 15(a)(1)(B), the court ordered Plaintiff to show cause why the amended complaint should not be 10 stricken. Defendant was ordered to inform the court whether it opposed the filing of the 11 untimely amended complaint and whether the amended complaint mooted the pending motion to 12 dismiss. 13 In response to the order to show cause, Plaintiff retroactively requested an extension of 14 time to file the amended complaint. Defendant filed a response stating the amended complaint 15 did not address the issues raised in the pending motion and should be stricken as untimely. 16 On May 24, 2010 the court issued an order rejecting the amended complaint because it 17 did not address the issues raised in the pending motion. However, the parties were ordered to 18 meet and confer within 7 days regarding the remaining defects in the amended complaint, and 19 Plaintiff was given until June 14, 2011 to file either an opposition to Defendant's motion to 20 dismiss or an amended complaint which addressed the issues raised by the motion. 21 Plaintiff filed neither an opposition nor an amended complaint. On May 25, 2010 22 Defendant's counsel Seth Neulight e-mailed Plaintiff's counsel Deb Pedersdotter to schedule a 23 meeting and conference pursuant to the May 24, 2010 order, however, she did not immediately 24 respond. (Decl. of Seth L. Neulight at 1 & Ex. A.) On May 27 Mr. Neulight received an e-mail 25 from Ms. Pedersdotter proposing May 31. (Id. at 1 & Ex. B.) Mr. Neulight could not meet on 26 that day, and tried to reschedule the meeting, but did not receive a response prior to the May 31, 27 2010 deadline. (Id. at 1-2 & Ex. B.) The parties therefore did not meet and confer as ordered. 28 / / / / / 10cv407 2 1 The parties did not communicate again until June 14, 2010, the due date for Plaintiff’s 2 amended complaint or opposition brief, when Ms. Pedersdotter contacted Mr. Neulight to let him 3 know that Plaintiff intended to file an amended complaint that day or the next. (Id. at 2.) 4 However, Plaintiff did not file anything. On July 23, 2010 Mr. Neulight called Ms. Pedersdotter 5 to inquire whether Plaintiff intended to proceed with the case. She told him she would speak 6 with Plaintiff and let Mr. Neulight know, but she did not again contact Mr. Neulight. (Id.) Mr. 7 Neulight called Plaintiff's counsel again in mid-August, and was informed that the delay in filing 8 was due to her health issues and involvement in an auto accident; however, she indicated she 9 would file papers shortly. (Id.) As of August 30, 2010, Plaintiff had not filed anything. Mr. 10 Neulight e-mailed Ms. Pedersdotter to inquire about the status and informed her of Defendant's 11 intent to file a motion to dismiss for failure to prosecute. (Id. at 2-3 & Ex. C.) Plaintiff's counsel 12 did not respond. (Id. at 3.) On October 13, 2010 Mr. Neulight called her again to inquire as to 13 Plaintiff's intent to prosecute. She informed him that Plaintiff intended to prosecute the case, 14 but, beyond stating that Defendant would receive "something" by October 20, she could not be 15 more specific. (Id.) Plaintiff did not file or otherwise provide Defendant with anything by that 16 date. Plaintiff did not comply with the May 24, 2010 order because he did not file an amended 17 complaint or an opposition by the June 14, 2010 due date. To date, he has not filed either 18 document. 19 On December 10, 2010 Defendant filed the instant Motion under Rule 41(b). Plaintiff did 20 not file a response. By failing to file either an opposition or a notice of non-opposition, Plaintiff 21 violated Civil Local Rule 7.1, which required a filing no later than January 14, 2011. Civ. Loc. 22 Rule 7.1(e)&(f). 23 On January 24, 2011 the court issued a notice of hearing on Defendant's Motion, which 24 ordered counsel to appear, and ordered Plaintiff's counsel to serve the notice on Plaintiff, so that 25 he may attend, if he so desired. Plaintiff’s counsel failed to comply with the order, because she 26 did not file the affidavit and did not appear at the hearing. 27 In its Motion, Defendant argues that this case should be dismissed under Rule 41(b) 28 because Plaintiff has failed to prosecute his claims and because he has failed to comply with the 10cv407 3 1 May 24, 2010 order. Rule 41(b) provides in pertinent part: “If the plaintiff fails to prosecute or 2 to comply with these rules or a court order, a defendant may move to dismiss the action or any 3 claim against it.” To determine whether to dismiss an action for failure to prosecute or failure to 4 comply with a court order, the court must weigh five factors: 5 6 (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 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits. 7 8 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (dismissal with prejudice for failure to 9 timely file amended petition). 10 "The public's interest in expeditious resolution of litigation always favors dismissal." 11 Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Given Plaintiff's failure to take any 12 steps to prosecute this action since May 2010, the first factor favors dismissal. See Pagtalunan, 13 291 F.3d at 642 ("failure to pursue the case for almost four months"). 14 With respect to the second factor, Plaintiff's untimely and unsuccessful filing of an 15 amended complaint, request for additional time, and subsequent failure to prosecute have 16 consumed some of the court's time that could have been devoted to other cases on the docket. 17 See id. "It is incumbent upon the Court to manage its docket without being subject to routine 18 noncompliance of litigants such as [Plaintiff]." Accordingly, this factor also weighs in favor of 19 dismissal." Id. 20 To make an adequate showing on the third factor, "a defendant must establish that 21 plaintiff's actions impaired defendant's ability to proceed to trial or threatened to interfere with 22 the rightful decision of the case. . . . [P]endency of a lawsuit is not sufficiently prejudicial in and 23 of itself to warrant dismissal. Limited delays and the prejudice to a defendant from the pendency 24 of a lawsuit are realities of the system that have to be accepted, provided the prejudice is not 25 compounded by unreasonable delays." Id. (internal quotation marks and citations omitted). 26 However, the law presumes prejudice if the delay is unreasonable." In re Phenylpropanolamine 27 ("PPA") Products Liability Litigation, 460 F.3d 1217, 1227 (9th Cir.2006). "Unnecessary delay 28 inherently increases the risk that witnesses' memories will fade and evidence will become stale." 10cv407 4 1 Pagtalunan, 291 F.3d at 643. "The presumption may be rebutted and if there is a showing that 2 no actual prejudice occurred, that fact should be considered when determining whether the 3 district court exercised sound discretion. A plaintiff may proffer an excuse for delay that, if 4 anything but frivolous, shifts the burden of production to the defendant to show at least some 5 actual prejudice." Id. at 1228 (internal citations and quotation marks omitted). 6 Although Ms. Pedersdotter informed Mr. Neulight that delay had been caused by her 7 medical issues and an auto accident, this explanation does not cover the entire period of the 8 delay. Ms. Pedersdotter informed Mr. Neulight on June 14, 2010 that she would file an amended 9 complaint on that day or the following day. (Seth L. Neulight Decl. at 2.) Therefore, the 10 explanation, which was provided to Defendant in mid-August (id.), covers only the time after 11 the June 14, 2010 due date had already passed. The explanation given to Defendant therefore 12 does not explain why Plaintiff failed to timely file. Furthermore, Plaintiff had the opportunity to 13 file a response to Defendant’s Motion and appear at the hearing to provide an explanation to the 14 court, but did not do so. Because Plaintiff's failure to timely file is unexplained, the presumption 15 of prejudice remains unrebutted. The third factor therefore favors dismissal. See Pagtalunan, 16 291 F.3d at 643. 17 With respect to the fourth factor, consideration of less drastic sanctions than dismissal 18 must occur after Plaintiff had violated an order. Although on May 24, 2010 the court extended 19 the time for Plaintiff to file an amended complaint or an opposition to Defendant's Rule 12(b)(6) 20 motion, Defendant at least twice warned Plaintiff's counsel that it would seek dismissal for 21 failure to prosecute and comply with orders (Seth L. Neulight Decl. Ex. C & D), and although 22 this court's Civil Local Rules provide for dismissal after six months of inactivity, Civ. L. R. 23 41.1(a), the court has not considered less drastic sanctions in response to Plaintiff's failure to 24 comply with the May 24, 2010 order. See Yourish, 191 F.3d at 992; Pagtalunan, 291 F.3d at 25 463. The fourth factor therefore weighs against dismissal. 26 Last, "[p]ublic policy favors disposition of cases on the merits." Pagtalunan, 291 F.3d at 27 463. This generally counsels against dismissal. See PPA Prod. Liab. Litig., 460 F.3d at 1228. 28 Nevertheless, "a case that is stalled or unreasonably delayed by a party's failure to comply with 10cv407 5 1 deadlines . . . cannot move forward toward resolution on the merits. [Therefore] this factor lends 2 little support to a party whose responsibility it is to move a case toward disposition on the merits 3 but whose conduct impedes progress in that direction." Id. (internal citations and quotation 4 marks omitted). The last factor therefore does not counsel against dismissal. 5 Based on the foregoing, Defendant’s Motion to Dismiss for Plaintiff’s Failure to 6 Prosecute and/or to Obey Court’s May 24, 2010 Order is GRANTED. See Pagtalunan, 291 7 F.3d at 463. This action is DISMISSED WITHOUT PREJUDICE. Defendant’s Motion to 8 Dismiss Plaintiff’s Complaint or, Alternatively, for a More Definite Statement is DENIED as 9 moot. 10 IT IS SO ORDERED. 11 12 DATED: January 31, 2011 13 M. James Lorenz United States District Court Judge 14 COPY TO: 15 HON. RUBEN B. BROOKS 16 UNITED STATES MAGISTRATE JUDGE 17 ALL PARTIES/COUNSEL 18 19 20 21 22 23 24 25 26 27 28 10cv407 6
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