The opinion of the court was delivered by: JAMES LARSON, Magistrate Judge
Dismissal with Prejudice
Granting Docket #54
Order permitting Plaintiff's counsel to
Order permitting Plaintiff's counsel to
The motion of Defendant Lucent Technologies, Inc. ("Lucent") to
dismiss the complaint of Plaintiff Capital Communications ("Capital") and
the motion of Capital's counsel to withdraw came on for hearing before
this Court on December 17, 2003. Capital appeared telephonically by its
Maryland counsel Barton D. Moorstein. Lucent appeared by its counsel
Katherine K. Ikeda, ORRICK, HERRINGTON & SUTCLIFFE. All parties have
consented to this Court's jurisdiction as required by
28 U.S.C. § 636(c). The Court considered the written pleadings and
oral argument of counsel and hereby grants both motions.
On December 28, 2001, Capital filed its complaint in the Circuit Court
for Montgomery County, Maryland against Lucent's predecessor, Ascend
Communications, Inc., for breach of contract. Lucent removed the case to
the U.S. District Court for the District of Maryland and in February 2002
filed a motion to transfer venue to the Northern District of California,
which was granted. Capital failed to oppose the motion to transfer.
Once in this district, Lucent answered Capital's complaint and filed a
counterclaim for overpayment of commissions. Capital failed to respond
and its default was entered June 6, 2002.
Since that time Capital has failed to make its initial disclosures, to
file a discovery plan or to obtain local counsel until it was expressly
ordered to do so by the Court. Capital's Maryland counsel pleaded
ignorance of the Local Rules for this district, but eventually applied
for and received admission pro hac vice, and obtained local
counsel. Local counsel appeared at a case management conference. Both
sides filed motions, Lucent for dismissal for failure to prosecute,
Capital to set aside the default. Shortly, however, Capital's local
counsel moved to withdraw on the basis that his client had failed both to
communicate and to cooperate with him. The Court granted the motion.
Capital obtained new local counsel, after having been given a deadline
by the Court, and on April 21, 2003 the Court denied Lucent's motion to
dismiss and set aside the entry of default against Capital.
Since May 2003, Lucent has been unable to obtain any cooperation from
Capital, in participating in Alternative Dispute Resolution ("ADR") or
discovery. In the two years of its existence, the case has made virtually
no progress toward resolution.
In their motion for permission to withdraw Barton D. Moorstein and
local counsel Paul J. Steiner inform the Court that their attempts to
communicate with Capital or obtain its cooperation and payment for their
work have been futile. Mr. Moorstein tried to contact Capital's
President, Andrew Powell, by telephone and by first class and certified
mail, at the company's last known address, with no response. (Declaration
of Barton D. Moorstein)
This Court has authority to dismiss a complaint for lack of
prosecution. Fed.R. Civ. P.41(b).
"Although there is indeed a policy favoring disposition [of a case] on
the merits, it is the responsibility of the moving party to move toward
that disposition at a reasonable pace, and to refrain from dilatory and
evasive tactics." Morris v. Morgan Stanley & Co.,
942 F.2d 648, 652 (9th Cir. 1991). A defendant is prejudiced for purposes of a
motion to dismiss if forced to expend additional time and resources due
to a plaintiffs' failure to prosecute. Id. at 651. The law
presumes injury from unreasonable delay. In re Eisen,
31 F.3d 1447, 1452 (9th Cir. 1994).
In the two years since this case was filed, Lucent, the defendant, has
had to take the initiative and the Court has had to intervene repeatedly
to prompt Capital to tend to its obligations. This Court finds that
Capital has inexcusably failed to prosecute its case. It does not retain
local counsel, communicate with counsel, or participate in either
discovery or ADR.
This pattern of neglect and delay has prejudiced Lucent, because it has
had to make several court appearances at which Capital either failed to
appear or was not prepared to participate meaningfully and because Lucent
has had to file multiple motions to force Capital to act, if only to
react. Lucent has had to attend case management conferences where there
was no appearance by Capital, to obtain entry of default against Capital
and to bring this very motion to dismiss because of Capital's neglect.
Capital offers no excuse for its multiple failures to prosecute its own
Capital failed even to cooperate with its own attorneys, to the point
where they are ...