Prime Healthcare Services, Inc. v. Service Employees International Union et al, No. 3:2011cv02652 - Document 95 (S.D. Cal. 2013)
Court Description: ORDER Granting 88 Defendants' 41(b) Motion to Dismiss With Prejudice. Plaintiff's action is Dismissed With Prejudice in its entirety under Federal Rule of Civil Procedure 41(b) as to all Defendants. The Clerk of Court shall enter judgment accordingly. The Court hereby Vacates the hearing set for December 13, 2013 at 1:30 p.m. Signed by Judge Gonzalo P. Curiel on 12/11/2013. (All non-registered users served via U.S. Mail Service)(srm)
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Prime Healthcare Services, Inc. v. Service Employees International Union et al Doc. 95 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PRIME HEALTHCARE SERVICES, INC., a Delaware corporation, 12 CASE NO. 11cv2652-GPC(RBB) ORDER GRANTING DEFENDANTS’ 41(b) MOTION TO DISMISS Plaintiff, 13 14 15 16 17 18 [Dkt. No. 88] vs. SERVICE EMPLOYEES INTERNATIONAL UNION, a Labor Union; et al., Defendants. Presently before the Court is a Federal Rules of Civil Procedure 41(b) motion 19 to dismiss filed by Defendants Service Employees International Union (“SEIU”) 20 and Service Employees International Union - United Healthcare Workers West 21 (“SEIU-UHW”). (Dkt. No. 88.) For the reasons provided below, this Court 22 GRANTS Defendants’ 41(b) motion and DISMISSES WITH PREJUDICE 23 Plaintiff’s First Amended Complaint (“FAC”). 24 25 26 BACKGROUND On September 21, 2012, Plaintiff filed a FAC in the present action. (Dkt. No. 43.) Defendants SEIU and SEIU-UHW (collectively, “Defendants”) filed separate 27 28 -1- [11cv2652-GPC(RBB)] Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 motions to dismiss Plaintiff’s FAC.1 (Dkt. Nos. 43, 57.) On July 25, 2013, this Court granted both motions to dismiss, allowing Plaintiff leave to amend the FAC. (Dkt. No. 87 at 30.) (“If Prime Healthcare wishes, it SHALL FILE an amended complaint within thirty days of the date this Order is electronically docketed. Failure to file an amended complaint by this date may result in dismissal with prejudice.”) (emphasis in original). To date, Plaintiff has not filed a second amended complaint. On November 1, 2013, Defendants filed a motion to dismiss this action for lack of prosecution under Rule 41(b). (Dkt. No. 88.) Plaintiff filed a notice of intent to appeal on November 4, 2013. (Dkt. No. 89) Defendants’ motion has been fully briefed. (Dkt. Nos. 93, 94.) LEGAL STANDARD 12 13 14 Federal Rule of Civil Procedure 41(b) provides that a defendant may move to dismiss an action or claim “[i]f the plaintiff fails to prosecute or comply with these 15 rules or a court order.” Dismissal, however, “is a harsh penalty and is to be imposed 16 only in extreme circumstances.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th 17 Cir. 1986) (citations omitted). In determining whether to dismiss a case for failure 18 to comply with a court order, the district court weighs five factors: “(1) the public’s 19 interest in expeditious resolution of the litigation; (2) the court’s need to manage its 20 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 21 disposition of cases on their merits; and (5) the availability of less drastic 22 alternatives.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (citations 23 and internal quotation marks omitted). In addition, “[a] dismissal for lack of 24 prosecution must be supported by a showing of unreasonable delay,” which creates 25 a presumption that the defendants have been injured. Henderson, 779 F.2d at 1423. 26 27 1 28 A third motion to dismiss was filed by Defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, and Southern California Permanente Medical Group. (Dkt. No. 59.) These Defendants do not join the present motion. -2- [11cv2652-GPC(RBB)] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Unlike dismissals under Rule 41(b), a Rule 12(b)(6) dismissal for failure to state a claim carries no stigma for disobedience of a court order. Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004). Furthermore, the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) reviews Rule 41(b) dismissals for “abuse of discretion in applying the five factors set forth in Ferdik, 963 F.2d at 1260, which pertain to the propriety of the sanction, not to the merits of the underlying question (such as whether a complaint states a claim).” Id. (citing Yourish v. California Amplifier, 191 F.3d 983, 986). On the other hand, the Ninth Circuit reviews 12(b)(6) dismissals “de novo, reviewing directly the question whether the plaintiff has stated a claim upon which relief could be granted.” Id. (citing Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9th Cir. 1995)). ANALYSIS Defendants file the present motion under Federal Rule of Civil Procedure 15 41(b), seeking involuntary dismissal of Plaintiff’s FAC with prejudice. (Dkt. No. 16 88-1.) Defendants argue Plaintiff’s failure to either amend or indicate intent to 17 appeal prior to the Court’s ordered deadline warrants Rule 41(b) sanctions. (Id. at 1- 18 2.) In response, Plaintiff claims Rule 41(b) sanctions are appropriate only in “cases 19 where there is a true failure to prosecute,” and that Plaintiff’s settlement attempts 20 and notice to opposing counsel of intent to appeal excuse any delay. (Dkt. No. 93 at 21 1-2.) Plaintiff requests instead that this Court enter a final judgment in this case 22 without Rule 41(b) sanctions. (Id. at 1, 3.) Defendants reply that neither Plaintiff’s 23 settlement attempts nor flawed communications with opposing counsel excuse 24 Plaintiff’s failure to either file a second amended complaint or notify the Court of 25 intent to stand on the FAC. (Dkt. No. 94.) 26 As an initial matter, the Court notes that Plaintiff must obtain a final 27 judgment from this Court prior to filing a notice of appeal. WMX Technologies, 28 Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (“We now specifically rule -3- [11cv2652-GPC(RBB)] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 that a plaintiff, who has been given leave to amend, may not file a notice of appeal simply because he does not choose to file an amended complaint. A further district court determination must be obtained.”). The United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) has expressly rejected the contrary holdings of other circuits. Id. at 1136 (disapproving of Otis v. City of Chicago, 29 F.3d 1159, 116668 (7th Cir. 1994) (en banc) (“finality springs into existence when the time for leave to amend expires.”)). Absent notice of a plaintiff’s intent not to amend a complaint when given leave to by the Court, “resources continue to be consumed by a case sitting idly on the court’s docket.” Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063-65 (9th Cir. 2004). Weighing the five factors from Ferdik v. Bonzelet, 963 F.2d 1258, the Court concludes that Plaintiff’s delay and failure to move the Court for final judgment warrants Rule 41(b) sanction. In particular, the first three Ferdik factors weigh 15 heavily in favor of Rule 41(b) dismissal. See Yourish, 191 F.3d at 990 (1999) 16 (approving of the district court’s grant of Rule 41(b) involuntary dismissal where 17 three out of five Ferdik factors favored dismissal). Involuntary dismissal serves the 18 public’s interest in expeditious resolution of the litigation as well as the Court’s 19 need to manage its docket because Plaintiff’s noncompliance with the Court’s 20 deadline has caused this case to languish on the Court’s docket for over two months. 21 By failing to timely move the Court for final judgment in this matter, Plaintiff has 22 effectively tolled the allowed period to prepare an appeal. See Jung v. K. & D. Min. 23 Co., 356 U.S. 3355 (1958) (Permitting appeal nearly two years after petitioners were 24 given leave to file an amended complaint because neither the defendants nor the 25 district court acting sua sponte sought to dismiss the action with prejudice after 26 petitioners missed the amendment deadline). 27 28 Furthermore, this delay has prejudiced the Defendant. See Yourish, 191 F.3d at 991 (“We have indicated that the risk of prejudice to the defendant is related to -4- [11cv2652-GPC(RBB)] 1 2 3 4 5 6 7 8 9 10 11 the plaintiff’s reason for defaulting in failing to timely amend.”) (citing Malone v. U.S. Postal Service, 833 F.2d 128, 131 (9th Cir. 1987)). To explain the delay, Plaintiff offers evidence of ongoing settlement negotiations as well as communication to opposing counsel of intent to stand on the FAC. (Dkt. No. 93 at 1-2.) Neither reason explains Plaintiff’s failure to communicate Plaintiff’s intentions to this Court by formal notice or motion for extension of time. Because unreasonable plaintiff delay creates a presumption of injury to defendants, Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also Yourish, 191 F.3d at 991-92, the Court finds that the third Ferdik factor also favors Rule 41(b) dismissal. The fourth Ferdik factor asks the Court to weigh the public policy favoring 12 13 14 disposition of cases on their merits. Ferdik, 963 F.2d at 1261. Public policy in this case does not favor dismissal under either Rule 41(b) or Rule 12(b)(6),2 since both 15 Plaintiff and Defendant seek dismissal of the FAC with prejudice. (Dkt. Nos. 88, 16 93.) 17 Last under the Ferdik analysis, the Court considers Plaintiff’s request that this 18 Court enter final judgment in this matter, dismissing the FAC with prejudice but 19 without Rule 41(b) sanction. (Dkt. No. 93 at 1.) Although Plaintiff proposes a “less 20 drastic alternative,” the Court concludes that the other Ferdik factors outweigh the 21 22 23 24 25 26 27 28 2 The Court notes that the Ninth Circuit in Edwards v. Marin Park, Inc. indicated that a complaint dismissed under Rule 41(b) would not be reviewed on the merits on appeal. 356 F.3d 1058, 1065 (9th Cir. 2004) (“conversion of a 12(b)(6) dismissal into one under Rule 41(b) . . . would . . . unjustly deny plaintiffs . . . who exercise the right to stand on a complaint their right to an appeal on the merits of the question whether the complaint is adequate as a matter of law.”). If this is the case, the public policy favoring adjudication on the merits favors this Court’s dismissal of the abovecaptioned matter under Rule 12(b)(6) instead of Rule 41(b). However, the Ninth Circuit in other cases has reviewed the merits of an underlying dismissal where the dismissal was converted to a Rule 41(b) dismissal for failure to timely amend the complaint or notify the Court of intent to appeal. See Yourish v. California Amplifier, 191 F.3d 983 (1999) (holding that the district court did not abuse its discretion in dismissing Plaintiff’s case under Rule 41(b) but nonetheless reviewing the underlying Rule 9(b) dismissal on the merits). The Court finds that even if the public policy favoring adjudication on the merits weighs in favor of dismissal under Rule 12(b)(6) rather than under Rule 41(b), the first three Ferdik factors outweigh this general public policy. See Id. -5- [11cv2652-GPC(RBB)] 1 availability of this proposed alternative. See Yourish, 191 F.3d at 990. 2 3 4 5 6 7 8 9 10 CONCLUSION For the reasons stated above, the Court GRANTS Defendants’ motion to dismiss, (Dkt. No. 88), and DISMISSES WITH PREJUDICE Plaintiff’s action in its entirety under Federal Rule of Civil Procedure 41(b) as to all Defendants. The Clerk of Court shall enter judgment accordingly. Having so held, the Court hereby VACATES the hearing date set for this matter on December 13, 2013 at 1:30 p.m. IT IS SO ORDERED. 11 12 DATED: December 11, 2013 13 14 15 HON. GONZALO P. CURIEL 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 -6- [11cv2652-GPC(RBB)]
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