Himes v. Garcia ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RODERICK HIMES, Case No.: 20-cv-726 JAH (BGS) 12 Plaintiff, REPORT AND 13 v. RECOMMENDATION TO DISMISS CASE WITHOUT PREJUDICE 14 A. TAYLOR GARCIA, et al., 15 Defendants. 16 17 18 I. INTRODUCTION 19 Plaintiff Roderick Himes has failed to comply with four Court orders, including an 20 order to show cause why he should not be sanctioned and a second order to show cause 21 why his case should not be dismissed. (ECF 15, 19, 21, and 22.) For the reasons 22 discussed below, the Court recommends the case be DISMISSED without prejudice. 23 II. BACKGROUND 24 The Court issued an Order on January 22, 2021 setting an Early Neutral Evaluation 25 and Case Management Conference for March 17, 2021. (ECF 14 at 1.) The Order 26 required Plaintiff and Defendant A. Taylor Garcia to submit ENE statements. (Id. at 3.) 27 The Order also required Plaintiff and Defendant to complete the Federal Rule of Civil 28 1 Procedure 26(f) conference and then submit the Joint Discovery Plan. (Id. at 3.) The 2 Court set deadlines for each of these requirements. (ECF 14 at 1, 3.) 3 The original deadlines were extended at Defendant’s request in a March 12, 2021 4 Order. (ECF 15 (Ex Parte Application requesting extension of deadlines), 16 (Order on 5 Ex Parte Application).) The dates were modified as follows: 6 • ENE/CMC set for April 26, 2021 7 • ENE Statements submitted by April 12, 2021 8 • Rule 26(f) Conference completed by March 29, 2021 9 • Filing of Joint Discovery Plan by April 12, 2021 10 (ECF 16.) 11 Plaintiff did not comply with the Court’s Order to submit an ENE Statement by 12 April 12, 2021. He also did not respond to Defendant’s letter attempting to conduct the 13 Rule 26(f) conference for preparation of the required Joint Discovery Plan. (ECF 18.) 14 Because Plaintiff failed to submit his ENE statement as ordered by the Court, the 15 ENE/CMC was converted to a telephonic conference.1 (ECF 17.) 16 Plaintiff and counsel for Defendant A. Taylor Garcia did call Judge Skomal’s 17 chambers on April 26, 2021. (ECF 19.) However, neither the ENE nor the CMC could 18 be held because Plaintiff failed to submit his ENE Statement and no Joint Discovery Plan 19 had been filed for the Case Management Conference. (ECF 19.) Plaintiff acknowledged 20 that he had not submitted his ENE Statement. (Id. at 1.) Plaintiff indicated he could 21 submit it by mail by April 28, 2021. (Id.) Plaintiff claimed he had not received 22 Defendant’s counsel’s letter to conduct the Rule 26(f) conference.2 23 /// 24 25 26 1 Plaintiff was required to include in his ENE statement an email address where he could 27 receive the information necessary to participate in the ENE/CMC by videoconference. (Id.) 28 1 The Court’s April 27, 2021 Order extended the prior deadlines as follows: 2 • Plaintiff shall submit his ENE Statement no later than April 29, 2021. 3 • Plaintiff and Defendant’s counsel shall conduct the Rule 26(f) 4 Conference no later than April 30, 2021. 5 • The Joint Discovery Plan shall be submitted no later than May 4, 2021. 6 7 (Id. at 2.) 8 The Court also indicated that “[g]iven Plaintiff failed to timely submit his ENE 9 Statement, if Plaintiff fails to comply with the deadlines above, the Court will issue an 10 order to show cause why sanctions should not be imposed for failure to comply with a 11 Court order.” (Id.) 12 Plaintiff did not comply with the Court’s April 27, 2021 Order. He did not submit 13 his ENE Statement. Given Plaintiff again failed to comply with a Court order, the Court 14 issued an Order to Show Cause. (ECF 21.) The Court’s June 7, 2021 Order identified 15 the two Court orders Plaintiff had failed to comply with and ordered Plaintiff to show 16 cause why he should not be sanctioned for failing to comply with those orders. (Id. at 2.) 17 The Order required him to respond to the OSC by June 16, 2021. (Id.) The Order also 18 required Plaintiff to submit his ENE Statement as soon as possible, but no later than June 19 16, 2021. (Id.) The Order specifically indicated that it was not sufficient to only submit 20 the ENE Statement. (Id.) Plaintiff was also required to respond to the OSC by June 16, 21 2021. (Id.) 22 Plaintiff did not comply with the June 7, 2021 Order. Plaintiff did not respond to 23 the OSC or submit his ENE Statement. (Id.) Because Plaintiff had failed to comply with 24 three separate Court orders, including one order to show cause that specifically required 25 him to explain why he should not be sanctioned, the Court issued a second order to show 26 cause, requiring Plaintiff to show cause why his case should not be dismissed. (ECF 22.) 27 This second order to show cause, issued on August 2, 2021, detailed all the ways Plaintiff 28 had failed to comply with the Court’s orders: (1) failed to participate in the Rule 26(f) 1 conference by the March 29, 2021 deadline; (2) failed to submit his ENE Statement by 2 the April 12, 2021 deadline; (3) failed to submit his ENE Statement by the April 29, 2021 3 deadline; (4) failed to submit his ENE Statement by the June 16, 2021 deadline; and (5) 4 failed to respond to the Court’s Order to Show Cause by the June 16, 2021 deadline. (Id. 5 at 3.) Plaintiff’s ENE statement and response to the second order to show cause were due 6 on August 16, 2021. (Id. at 4.) Plaintiff has again failed to submit his ENE statement. 7 He has also not responded to the Court’s second Order to Show Cause why the case 8 should not be dismissed. 9 III. LEGAL STANDARD 10 “Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss 11 an action for failure to comply with any order of the court.” Ferdik v. Bonzelet, 963 F.2d 12 1258, 1260 (9th Cir. 1992); Fed. R. Civ. P. 41(b) (A case may be involuntarily dismissed 13 if a plaintiff “fails . . . to comply with these rules or a court order.”); see also Hells 14 Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) 15 (Acknowledging language of Rule 41(b) suggests dismissal following defendant’s 16 motion, but agreeing with sister circuits that “courts may dismiss under Rule 41(b) sua 17 sponte.”) “District courts have the inherent power to control their dockets and ‘in the 18 exercise of that power they may impose sanctions including, where appropriate, . . . 19 dismissal of a case.’” Ferdik, 963 F.2d at 1260. However, because “dismissal is a harsh 20 penalty . . . it should only be imposed in extreme circumstances.” Id. (citing Hamilton 21 Copper & Steel Corp. v. Primary Steel, Inc., 898 F.2d 1428, 1429 (9th Cir 1990)). 22 “In determining whether to dismiss a case for failure to comply with a court order 23 the district court must weigh five factors including: ‘(1) the public’s interest in 24 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk 25 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 26 merits; and (5) the availability of less drastic alternatives.’” Id. at 1260-61 (citing 27 Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986) and Henderson v. 28 Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “This ‘test’ is not mechanical. It 1 provides the district court with a way to think about what to do, not a set of conditions 2 precedent.” Connecticut Gen. Life Ins. Co. v. New Images Beverly Hills, 482 F3d 1091, 3 1096 (9th Cir. 2007). Although explicit findings showing consideration of these factors 4 is not required, it is preferred. Ferdik, 963 F.2d at 1261; Yourish v Cal. Amplifier, 191 5 F.3d 983, 990 (9th Cir. 1999). 6 IV. DISCUSSION 7 The Court recommends dismissal of this action because, as detailed below, four of 8 these five factors weigh in favor of dismissal and the fifth, that does not favor dismissal 9 carries minimal weight under these circumstances. 10 A. Public’s Interest in Expeditious Resolution of Litigation and Court’s 11 Need to Manage its Docket 12 “[T]he public’s interest in expeditious resolution of litigation always favors 13 dismissal.” Yourish, 191 F.3d at 990. As to the court’s need to manage its docket, “[i]t is 14 incumbent upon the Court to manage its docket without being subject to routine 15 noncompliance of litigants.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 16 The Court’s caseload “requires the cooperation of litigants in moving forward so that 17 judicial resources are available to others.” Ash v. Cvetkov, 739 f.2d 493, 496 (9th Cir. 18 1984 (Analyzing five factors and finding no abuse of discretion in dismissing for failure 19 to prosecute following four-week delay). 20 Plaintiff has repeatedly failed to comply with Court orders, preventing the 21 expeditious resolution of this case. The case has been delayed more than five months as 22 a result of Plaintiff’s failure to comply with four separate Court orders setting specific 23 deadlines to comply. Plaintiff’s violation of each of these orders have not only stopped 24 this case from proceeding, but also diverted judicial resources away from other cases. 25 Given the significant delays, lack of compliance, and unjustified consumption of valuable 26 judicial resources, the Court finds the public’s interest in the expeditious resolution of the 27 litigation and the Court’s need to manage its docket both favor dismissal. 28 1 B. Risk of Prejudice to Defendant 2 The “pendency of a lawsuit is not sufficiently prejudicial in and of itself to warrant 3 dismissal.” Pagtalunan, 291 F.3d at 642. “Limited delays and the prejudice to a 4 defendant from the pendency of a lawsuit are realities of the system that have to be 5 accepted, provided the prejudice is not compounded by ‘unreasonable delays.’” Id. 6 (quoting Ash, 739 F.2d at 496)(emphasis added). “[E]ven in the absence of a showing of 7 actual prejudice to the defendant from the failure, [t]he law presumes injury from 8 unreasonable delay.” In re Eisen, 31 f.3d 1447, 1452 (9th Cir. 1994). Courts also 9 consider the reason for the delay in evaluating the risk of prejudice. Pagtalunan, 291 10 F.3d at 642-43 (“[W]e have also related the risk of prejudice to the plaintiff’s reason for 11 defaulting.”). 12 As noted above, this case had been delayed more than five months by Plaintiff’s 13 lack of compliance with numerous Court orders. Even with an explanation, this delay is 14 likely unreasonable. But here, Plaintiff has also not provided any explanation for his 15 delay. Despite the Court specifically ordering him to provide an explanation, he has not 16 responded to either order to show cause. There is no explanation of what, if any, action 17 he has taken in the last five months to comply with the Court’s orders. In the absence of 18 any explanation for the delay, the Court can only conclude the delay is unreasonable and 19 therefore prejudicial. Id. at 643 (Finding plaintiff’s “delay was unreasonable, and this 20 factor weighs in favor of dismissal” when plaintiff “offered no clear explanation for what 21 actions he actually took during the relevant time periods.”). The Court finds the risk of 22 prejudice weighs in favor of dismissal. 23 C. Public Policy Favoring Disposition on the Merits 24 The “public policy favoring disposition of cases on their merits strongly counsels 25 against dismissal,” but “this factor ‘lends little support’ to a party . . . whose conduct 26 impedes progress in that direction.” In re Phenylpropanolamine (PPA) Prods. Liab. 27 Litig., 460 F.3d 1217, 1228 (9th Cir. 2006); see also Pagtalunan, 291 F.3d at 643 28 (Concluding this factor weighed against dismissal because public policy favors 1 disposition on the merits). The Court finds this factor weighs against dismissal, but 2 minimally given Plaintiff has impeded the progression of the case by not complying with 3 numerous court orders. 4 D. Availability of Less Drastic Sanctions 5 “[T]he following factors are of particular relevance in determining whether a 6 district court has considered alternatives to dismissal: (1) Did the court explicitly discuss 7 the feasibility of less drastic sanctions and explain why alternative sanctions would be 8 inadequate? (2) Did the court implement alternative methods of sanctioning or curing the 9 malfeasance before ordering dismissal? (3) Did the court warn the plaintiff of the 10 possibility of dismissal before actually ordering dismissal?” Malone v. U.S. Postal Serv., 11 833 F.2d 128, 132 (9th Cir. 1987). “[W]arning a plaintiff that failure to obey a court 12 order will result in dismissal can suffice to meet the ‘consideration of alternatives 13 requirement.” Id. at 132-33 (collecting cases). 14 As detailed above,3 the Court first extended the deadline with a warning that an 15 order to show cause would follow if Plaintiff did not comply. (ECF 19.) In doing so, the 16 Court “implement[ed] [an] alternative method[] of curing the malfeasance before 17 ordering dismissal,” meeting the second subfactor. Id. at 132. 18 When Plaintiff did not comply, the Court extended the deadline, but also issued an 19 order to show cause why sanctions should not be imposed. (ECF 21.) This provided 20 Plaintiff the chance comply, another attempt to cure the malfeasance before dismissal, but 21 also required some explanation for his two prior violations of Court orders. When 22 Plaintiff failed to comply or respond to the first order to show cause, the Court could 23 have issued monetary sanctions, a potentially “less drastic sanction” under subfactor one, 24 that the Court considered. Id. However, given Plaintiff is proceeding IFP and is unlikely 25 to be in a position to pay a monetary sanction and also appeared to have abandon this 26 27 28 | the Court instead provided Plaintiff a final opportunity to comply with the Court’s 2 || orders and explain his prior violations. (ECF 22.) This second order to show cause again 3 required Plaintiff to comply by submitting his ENE statement, but it also required 4 || Plaintiff to show cause why the case should not be dismissed. (Ud. at 3.) The Order 5 || explicitly warned Plaintiff that “[i]f Plaintiff fails to comply with this Order, the 6 || undersigned will recommend this case be dismissed.” (/d. at 3-4.) This explicit and clear 7 || warning is itself sufficient to satisfy this final factor. 8 The Court finds this factor also weighs in favor of dismissal. CONCLUSION 10 Having found four of the five factors weigh in favor of dismissal and the fifth only 11 |}minimally weigh against dismissal, the Court recommends this case be DISMISSED 12 || without prejudice. 13 IT IS HEREBY ORDERED that any written objections to this Report must be filed 14 || with the Court and served on all parties no later than October 18, 2021. The document 15 should be captioned “Objections to Report and Recommendation.” 16 IT IS FURTHER ORDERED that any reply to the objection shall be filed with the 17 || Court and served on all parties no later than October 25, 2021. The parties are advised that 18 |/the failure to file objections within the specified time may waive the right to raise those 19 || objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th 20 || Cir. 1998). 21 22 IT IS SO ORDERED. 23 || Dated: October 1, 2021 p / / 24 on. Bernard G. Skomal 25 United States Magistrate Judge 26 27 28 °