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Bailey v. Fred Finch Children's Home


October 18, 2005



The opinion of the court was delivered by: Claudia Wilken United States District Judge

Defendants Berkeley Ecumenical Ministries Foundation (BECH), Bonnie Bonetti-Bell, Frances Townes, Hana McQuinn and Morris Wright (collectively, BECH Defendants) move for summary judgment pursuant to Federal Rule of Civil Procedure 56(b). Defendants Fred Finch Children's Home, Inc., (Finch), Molly Thauwald, Geetha Ravi-Thaker, Kara Carnahan and Susana Marshland (collectively, Finch Defendants) move for an order of final dismissal and entry of judgment, pursuant to Federal Rule of Civil Procedure 41(b). Pro se Plaintiff James Bailey, Jr., has filed a document entitled "Declaration Plaintiff, Motion for Summary Judgment," which the Court construes as an opposition to Defendants' motions.

The Court finds the motions appropriate for decision without oral argument as permitted by Civil Local Rule 7-1(b) and Federal Rule of Civil Procedure 78. See also Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998) (noting that district court may decide summary judgment issues without oral argument if parties have opportunity to submit written materials) (citing Lake at Las Vegas Investors Group, Inc. v. Pacific Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991) cert. denied, 503 U.S. 920 (1992)).

Having considered all of the papers filed by the parties, the Court GRANTS BECH Defendants' motion for summary judgment and GRANTS Finch Defendants' motion for an order of final dismissal.


Plaintiff filed this lawsuit on December 27, 2004, alleging that both BECH Defendants and Finch Defendants violated Title VII of the Civil Rights Act of 1964 by discriminating against him on the bases of race and sex.

Finch Defendants moved to dismiss Plaintiff's claims against them on the grounds, among others, that Finch and its employees are not proper parties and are not liable to Plaintiff under Title VII, and that Plaintiff failed to exhaust administrative remedies against them. The Court dismissed Plaintiff's claims against Finch Defendants on those grounds, granting Plaintiff leave to file a first amended complaint (FAC) alleging, if he could truthfully do so, that an employment relationship existed between himself and Finch Defendants. April 19, 2005 Order Granting Finch Defendants' Motion to Dismiss and Granting BECH Defendants' Motion for Leave to File Amended Answer. The Court also required that Plaintiff allege, if he could truthfully do so, that he exhausted administrative remedies with respect to each Finch Defendant.

Unless Plaintiff provided additional materials to support the exhaustion of administrative remedies, the Court instructed that he could not name as Defendants Geetha Ravi-Thaker, Kara Carnahan, Holly Thauwald or Susana Marshland. Id. at 7. Plaintiff was directed to file a FAC no later than May 20, 2005.

On April 25, Plaintiff filed a motion for leave to file a FAC. The Court denied the motion as moot, explaining that Plaintiff had already been granted leave to file a FAC. April 27, 2005 Order Denying Plaintiff's Motion for Leave to File First Amended Complaint. The Court declined to construe the motion itself as a FAC because it did not conform either to the requirements of the Civil Local Rules or to the instructions in the April 19, 2005 Order. The Court restated those instructions and the May 20 deadline for filing a FAC.

Plaintiff then filed a "motion to amend first amended complaint" on May 2, 2005 and another "motion to file first amended complaint" on May 17, 2005. Neither motion was noticed for hearing. The May 2 motion consists of a two and a half page narrative regarding his relationship to Finch, BECH and Homeless Youth Collaborative (HYC), which he describes as "the entity that Mr. Bailey and other staff were all trained to work under in the collaborative." It is supported by a copy of the December 13, 2004 right-to-sue letter issued by the EEOC against HYC, which was also attached to Plaintiff's original complaint. The May 17 motion consists only of a cover page attached to copies of documents. In addition to an unauthenticated letter from a third party, these documents include a May 16, 2005 EEOC letter providing a right to sue Defendant Bonnie Bonetti-Bell; a May 10, 2005 letter from California's Department of Fair Employment and Housing (DFEH) providing a right to sue BECH; a May 16, 2005 EEOC letter providing a right to sue Finch; a May 12, 2005 EEOC letter providing a right to sue HYC; and a December 13, 2004 EEOC letter providing a right to sue HYC.

Finch Defendants now move for entry of an order of final dismissal on the grounds that (1) Plaintiff cannot truthfully allege an employment relationship with Finch Defendants and (2) Plaintiff failed to file an amended complaint by the Court's May 20 deadline.

BECH Defendants move for summary judgment on the grounds that they are not statutory employers within the meaning of Title VII, and that the complaint fails to allege the existence of the necessary employment relationship with BECH or the required exhaustion of administrative remedies. The motion was initially noticed for hearing on July 15, 2005. When Plaintiff failed to file a timely opposition, the Court vacated the hearing date and granted Plaintiff a two-week extension of time in which to file an opposition to BECH Defendants' motion for summary judgment. See July 1, 2005 Order Vacating Hearing Date and Extending Plaintiff's Deadline to File Opposition. The deadline for Plaintiff's opposition to Finch Defendants' motion for final dismissal was set for the same time. The Court concurrently issued to Plaintiff an order providing notice of the requirements for opposing a motion for summary judgment.

On July 6, 2005, Plaintiff filed an ex parte request that the Court "postpone . . . ruling on the case" due to medical and economic hardships. The Court granted the request and issued a thirty-day stay of all activity in the case, including Plaintiff's deadline to file oppositions. Plaintiff filed declarations in support of his own "motion for summary judgment," which the Court has construed as an opposition to both Defendants' motions.


I. Motion to Dismiss

Rule 41(b) of the Federal Rules of Civil Procedure allows a defendant to move for dismissal of an action or claim "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of the court." "Under Ninth Circuit precedent, when a plaintiff fails to amend his complaint after the district judge dismisses the complaint with leave to amend, the dismissal is typically considered a dismissal for failing to comply with a court order rather than for failing to prosecute the claim." Yourish v. California Amplifier, 191 F.3d 983, 986 (9th Cir. 1999) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)).

Before imposing a dismissal sanction, a district court is to consider five factors:

(1) the public's interest in expeditious resolution of litigation;

(2) the court's need to manage its docket;

(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.

Yourish, 191 F.3d at 990 (citations omitted). "Where a court order is violated, the first two factors support sanctions and the fourth factor cuts against a default. Therefore, it is the third and fifth factors that are decisive." Adriana Intern. Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990).

With regard to the third factor, a court is to "examine whether the plaintiff's actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case." Malone v. United States Postal Service, 833 F.2d 128, 131 (9th Cir. 1987). The Ninth Circuit has held, "Whether prejudice is sufficient to support an order of dismissal is in part judged with reference to the strength of the plaintiff's excuse for the default." Id.

Regarding the fifth factor, the Ninth Circuit employs a three-part analysis to determine whether a district court properly considered the adequacy of less drastic sanctions:

(1) did the court explicitly discuss the feasibility of less drastic sanctions and explain why alternative sanctions would be inappropriate, (2) did the court implement alternative sanctions before ordering dismissal, and (3) did the court warn the party of the possibility of dismissal before actually ordering dismissal?

Adriana, 913 F.2d at 1412-3.

II. Summary Judgment

Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987).

The moving party bears the burden of showing that there is no material factual dispute. Therefore, the court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. The court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).

Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where the moving party does not bear the burden of proof on an issue at trial, the moving party may discharge its burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. The moving party is not required to produce evidence showing the absence of a material fact on such issues, nor must the moving party support its motion with evidence negating the non-moving party's claim. Id.; see also Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 885 (1990); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), cert. denied, 502 U.S. 994 (1991). If the moving party shows an absence of evidence to support the non-moving party's case, the burden then shifts to the opposing party to produce "specific evidence, through affidavits or admissible discovery material, to show that the dispute exists." Bhan, 929 F.2d at 1409. A complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Celotex, 477 U.S. at 323.


I. Finch Defendants' Motion to Dismiss

A. Failure to Follow Court Orders

Plaintiff James Bailey filed nothing identified as an amended complaint by the May 20 deadline established by the Court's April 19, 2005 order. The Court cannot construe either Plaintiff's May 2 "motion to amend first amended complaint" or his May 17 "motion to file first amended complaint" as a FAC for the same reasons that it did not construe Plaintiff's April 25 filing as a FAC. Plaintiff's April 25 "motion for leave to file first amended complaint" was denied as moot because he had already been granted leave to file a FAC, and the May 2 and May 17 motions are likewise moot. The May 2 and the May 17 filings appear to be briefs or collections of exhibits, not FACs. For instance, they do not include any statement of the claim or claims asserted, a caption containing the names of all the parties, the filings are not identified as a "first amended complaint," and there is no statement of the basis for the Court's jurisdiction. Cf. Fed. R. Civ. P. 8(a); Fed. R. Civ. P. 10(a); Civ. L. R. 3-4(c)(3), 3-5(a). Neither restates Plaintiff's entire complaint, as required by Civil Local Rule 10-1 and the Court's April 27 order. Furthermore, while Plaintiff indicates in these filings that he collaborated closely with Finch and its employees, he does not actually allege that Finch was his employer or that Finch Defendants hired him, supervised him or paid his salary. Plaintiff does not otherwise allege that Finch and BECH were so integrated or that Finch exercised such control that it should be deemed his employer. See May 2, 2005 Pl.'s Mot. Amend First Amended Complaint at 2-3. For these reasons, the Court finds that Plaintiff failed to comply with its orders regarding filing of a FAC, and has not filed a cognizable FAC.

B. Dismissal

Finch Defendants move for an order of final dismissal and entry of judgment in their favor, pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff's "motion for summary judgment" repeats many of his allegations against Finch Defendants, but does not address the merits of Finch Defendants' motion for dismissal and entry of judgment.*fn1

Because the Court finds that Plaintiff has violated its orders with respect to filing a FAC, the public's interest in expeditious resolution of litigation and the Court's need to manage its docket weigh in favor of granting Finch Defendants' motion. The public policy of favoring disposition of cases on their merits does not weigh against entry of judgment as a sanction, because, despite being given the opportunity to do so, Plaintiff has filed no cognizable complaint against Finch Defendants.

Finch Defendants argue that the third factor weighs in favor of dismissal because they will suffer substantial prejudice absent a final dismissal. Despite his failure actually to file a FAC, Plaintiff has filed multiple unnecessary motions for leave to file a FAC. None of these motions has been noticed for hearing and Finch Defendants have not filed oppositions to the motions, and thus have incurred no substantial prejudice. However, Plaintiff's filings indicate that he is not willing or able to comply with the Court's orders, and therefore further litigation risks burdening Finch Defendants with the need to defend against groundless motions. Plaintiff has offered no excuse for his failure to file a FAC, even after the Court's repeated instruction. This failure impedes Finch Defendants' legitimate interest in obtaining a timely and final resolution of the claims against them. In addition, the third factor regarding risk of prejudice to Finch Defendants weighs in favor of dismissal.*fn2

The final factor, the adequacy of less drastic sanctions, also weighs in favor of dismissal. The Court set forth explicit instructions for filing the FAC in its April 19 order, and warned Plaintiff that failure to follow those instructions "may result in dismissal of the FAC." April 19, 2005 Order at 7. The Court repeated its requirements in its April 27 order, explaining that a motion for leave to file a FAC was unnecessary and would be denied as moot, and declining to construe Plaintiff's filing as a FAC. The Court again warned, "Failure to follow these instructions will result in dismissal of the claims against Finch Defendants with prejudice." April 27, 2005 Order at 2. Despite these admonishments, Plaintiff filed two additional motions for leave, but did not file a FAC. The Court's attempts at less drastic sanctions have failed, and further admonitions would be futile.

Because all factors weigh in favor of entry of judgment in Finch Defendants' favor, the Court grants Finch Defendants' motion and orders final dismissal pursuant to Federal Rule of Civil Procedure 41(b).

II. BECH Defendants' Motion for Summary Judgment

BECH Defendants move for summary judgment of the claims remaining against them on the grounds, among others, that BECH Defendants are not qualified "employers" within the terms of Title VII. Plaintiff opposes the motion, but does not address this issue.

According to Defendant Bonnie Bonetti-Bell, President of BECH, Plaintiff was hired by BECH in October, 2001 and terminated on or about November 15, 2004. Kertesz Decl. Ex. E, Bonetti-Bell Decl. ¶ 6. Ms. Bonetti-Bell states that at no time during Plaintiff's employment did BECH employ more than eleven employees. Id. at ¶ 7.

Plaintiff does not dispute Ms. Bonetti-Bell's statement, and none of the documents attached to any of his filings shows that a dispute exists as to the number of BECH employees.

For the purposes of Title VII, an "employer" is a "person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person." 42 U.S.C. § 2000e(b). This fifteen-employee minimum is a requirement for the Court to exercise subject matter jurisdiction. See Childs v. Local 18, Int'l Bhd. of Electrical Workers, 719 F.2d 1379, 1382 (9th Cir. 1983) (affirming dismissal of Title VII claims for lack of subject matter jurisdiction where local union did not meet fifteen-employee minimum). Therefore, neither BECH itself nor any of the individual Defendants (Ms. Bonetti-Bell, Frances Townes, Hana McQuinn and Mr. Wright) who are supervisors or employees at BECH are "employers" for purposes of Title VII, and the Court cannot exercise jurisdiction over Plaintiff's claims against BECH Defendants. Therefore, the Court grants BECH Defendants' motion for summary judgment.


For the foregoing reasons, the Court GRANTS Finch Defendants' motion for an order of final dismissal and entry of judgment (Docket No. 43) and GRANTS BECH Defendants' motion for summary judgment (Docket No. 45). The Court DENIES as moot Finch Defendants' request for judicial notice (Docket No. 44). The Court DENIES as moot Plaintiff's motion to amend first amended complaint and motion for leave to file first amended complaint (Docket No. 40, 42). The Court DENIES Plaintiff's motion for summary judgment (Docket No. 54).

The claims against Finch Defendants are dismissed with prejudice. The claims against BECH Defendants are adjudicated summarily in their favor. The Clerk shall enter judgment in favor of Defendants and close the file. Each party shall bear its own costs of the action.


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