Taj Transport Inc. v. Singh ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TAJ TRANSPORT INC., et al., Case No. 1:23-cv-00085-JLT-EPG 10 Plaintiffs, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE 11 v. DISMISSED, WITHOUT PREJUDICE, BECAUSE OF PLAINTIFFS’ FAILURE TO 12 RASANJIT SINGH, et al., COMPLY WITH COURT ORDERS AND TO PROSECUTE THIS CASE 13 Defendants. (ECF Nos. 18, 28) 14 OBJECTIONS, IF ANY, DUE WITHIN 15 FOURTEEN DAYS 16 This removed case concerns state law claims, including negligence and breach of contract, 17 resulting from a business dispute between a commercial trucking company, Plaintiff Taj 18 Transport Inc., and its owner Plaintiff Palwinder Gharu, and Defendant Rasanjit Singh and 19 Defendant FedEx Ground Package System, Inc. (ECF Nos. 1, 12) 20 While Plaintiffs were initially represented by counsel, they expressed a desire to retain 21 new counsel and their attorney has now withdrawn. (ECF No. 28). Because Plaintiffs have since 22 failed comply with court orders and to prosecute this case, the Court recommends dismissal of 23 this case without prejudice. 24 I. BACKGROUND 25 This action was removed on January 19, 2023. (ECF No. 1). As amended, Plaintiffs bring 26 multiple state law claims, most of which concern negligence and breach of contract, generally 27 relating to a dispute with Defendants concerning compensation for hauling freight. (ECF No. 12). 28 On March 21, 2023, the Court approved the parties’ stipulation for Plaintiffs to file a second 1 amended complaint within twenty-one days from the entry of the order. (ECF No. 14). Plaintiffs 2 did not timely file a second amended complaint. 3 At a scheduling conference on June 6, 2023, the Court was advised that Plaintiffs planned 4 to retain new counsel and the Court continued the scheduling conference to September 18, 2023, and the deadline to file a second amended complaint to August 31, 2023, advising Plaintiffs that 5 failure to file a second amended complaint may result in the dismissal of this case. (ECF No. 18). 6 Plaintiffs never filed a second amended complaint. 7 Plaintiffs’ attorney moved to withdraw from the case, which motion the Court granted at a 8 hearing on September 8, 2023. (ECF Nos. 27, 28). Despite being advised of the hearing, no 9 Plaintiff or person on their behalf attended. (ECF No. 25). 10 Having heard nothing from Plaintiffs, the Court issued a show cause order on September 11 8, 2023, noting that it was unclear if Plaintiffs intended to litigate the case and ordering Plaintiffs 12 to file a response explaining (1) why this case should not be dismissed; (2) whether they intended 13 to litigate this matter further; and (3) whether they intended to obtain counsel. (ECF No. 28). The 14 Court warned Plaintiffs that if they “fail[ed] to file any response to this order [by October 9, 15 2023], . . . this action may be dismissed.” (ECF No. 28). Neither Plaintiff has responded to the 16 show cause order or filed anything of record. 17 II. ANALYSIS 18 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 19 comply with a court order, the Court must weigh the following factors: (1) the public’s interest in 20 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 21 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 22 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 23 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). “The public’s interest in expeditious resolution of litigation always favors dismissal.” Id. 24 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this 25 first factor weighs in favor of dismissal. 26 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 27 determine whether the delay in a particular case interferes with docket management and the 28 1 public interest.” Id. Here, Plaintiffs’ failure to file a second amended complaint as ordered, failure 2 to respond to the show cause order, and failure to otherwise prosecute this case is delaying 3 litigation. Such failure to respond to orders, or even request an extension of time to do so, 4 indicates that Plaintiffs have no intention of pursuing this case. Allowing this case to proceed further, with minimal activity so far by Plaintiffs, and no indication that Plaintiffs wish to 5 prosecute this action further, would waste judicial resources. See Hall v. San Joaquin County Jail, 6 No. 2:13-cv-0324 AC P, 2018 WL 4352909, at *2 (E.D. Cal. Sept. 12, 2018) (“The court will not 7 continue to drag out these proceedings when it appears that plaintiff has no intention of diligently 8 pursuing this case.”). Therefore, the second factor weighs in favor of dismissal. 9 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 10 and of itself to warrant dismissal.” Pagtalunan, 291 F.3d at 642 (citing Yourish, 191 F.3d at 991). 11 However, “delay inherently increases the risk that witnesses’ memories will fade and evidence 12 will become stale,” id. at 643, and it is Plaintiffs’ failure to comply with court orders and to 13 prosecute this case that is causing delay and preventing this case from advancing. Therefore, the 14 third factor weighs in favor of dismissal. 15 As for the availability of lesser sanctions, given that Plaintiffs have failed to comply with 16 court orders and have chosen not to prosecute this action, despite being warned of possible 17 dismissal on two occasions, there is little available to the Court which would constitute a 18 satisfactory lesser sanction while protecting the Court from further unnecessary expenditure of its 19 scarce resources. Given the stage of these proceedings, the preclusion of evidence or witnesses is 20 not available. Additionally, because the dismissal being considered in this case is without 21 prejudice, the Court is stopping short of using the harshest possible sanction of dismissal with 22 prejudice. Therefore, the fourth factor weighs in favor of dismissal. 23 Finally, because public policy favors disposition on the merits, this factor weighs against dismissal. Id. 24 III. CONCLUSION AND RECOMMENDATIONS 25 After weighing the factors regarding dismissal, the Court finds that dismissal without 26 prejudice is appropriate. Accordingly, the Court RECOMMENDS that: 27 1. This case be dismissed, without prejudice, because of Plaintiffs’ failure to comply 28 1 | with court orders and to prosecute this case; and 2 2. The Clerk of Court be directed to close this case. 3 These findings and recommendations are submitted to the United States district judge 4 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 5 | (14) days after being served with these findings and recommendations, Plaintiff may file written 6 | objections with the court. Such a document should be captioned “Objections to Magistrate 7 | Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 8 | the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 9 | 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 IT IS SO ORDERED. 12 | Dated: _ October 13, 2023 [Je heey B UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28