Brum v. MarketSource, Inc. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Jennifer Brum, et al., No. 2:17-cv-00241-KJM-JDP 12 Plaintiffs, ORDER 13 v. MarketSource, Inc., et al., 1S Defendants. 16 17 The defendants move to dismiss for lack of prosecution under Federal Rule of Civil 18 | Procedure 41(b) and move to strike plaintiffs’ class allegations in the alternative. Mot., ECF 19 | No. 64. The motion is fully briefed and was submitted without argument. See Opp’n, ECF 20 | No. 65; Reply, ECF No. 66; Min. Order, ECF No. 67. 21 “Dismissal is a harsh penalty and is to be imposed only in extreme circumstances.” Jn re 22 | Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting 23 | Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). A Rule 41(b) dismissal “must be 24 | supported by a showing of unreasonable delay.” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th 25 | Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986), overruled on 26 | other grounds by Langere v. Verizon Wireless Servs., LLC, 983 F.3d 1115, 1117 (9th Cir. 2020). 27 The defendants argue the plaintiffs abandoned this case for many months, if not years. 28 | See Mot. at 10-11. A lengthy delay such as this might be “unreasonable” in some cases, but the 1 | court cannot reach that conclusion in this one. No Rule 16 scheduling order appears to have been 2 | issued during the relevant period. The previously assigned district judge also recently discharged 3 | an order to show cause why this case should not be dismissed for lack of prosecution. See Min. 4 | Order, ECF No. 62. Granting the defendants’ motion would amount to reconsidering that 5 | decision, and the defendants have not established that reconsideration is appropriate. Cf Leslie 6 | Salt Co. v. United States, 55 F.3d 1388, 1393 (9th Cir. 1995) (“[T]he court may reconsider 7 | previously decided questions in cases in which there has been an intervening change of 8 | controlling authority, new evidence has surfaced, or the previous disposition was clearly 9 | erroneous and would work a manifest injustice.”). Dismissal would be an unduly harsh sanction 10 | in these circumstances. 11 The court also denies the defendants’ alternative request to strike the plaintiffs’ class 12 | allegations. These allegations may be tested without delay on their merits in the now-pending 13 | motion for certification, ECF No. 70, and the court can mitigate any prejudice of delays by setting 14 | an appropriate pretrial schedule, see Min. Order, ECF No. 68 (setting a status (pretrial 15 | scheduling) conference). 16 The motion to dismiss (ECF No. 64) is denied. 17 IT IS SO ORDERED. 18 DATED: June 21, 2022. [\ (] 19 l ti / { q_/ CHIEF NT] ED STATES DISTRICT JUDGE 45