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United States District Court, S.D. California

November 7, 2005.

ACTUS CORPORATION, et al., Defendants.

The opinion of the court was delivered by: BARRY MOSKOWITZ, District Judge


Defendants have filed a motion to dismiss this case for failure to arbitrate. For the reasons discussed below, Defendants' motion is GRANTED and this case is DISMISSED WITHOUT PREJUDICE.


  Plaintiff Vista Enterprises, Inc. ("Plaintiff' or "Vista") commenced this action on July 30, 2004. Plaintiff seeks damages arising out of the alleged failure of defendant Actus Corporation ("Actus") to pay for services rendered and material supplied pursuant to a subcontract with Vista.

  In a stipulation filed on August 2, 2004, Plaintiff and Defendants stipulated that the contract between Vista and Actus contains an arbitration clause which provides: "Any controversy or claim, including specifically any Miller Act claim, arising out of, or in any way related to this Agreement shall be decided in binding arbitration, pursuant to the United States Arbitration Act. . . ." Pursuant to the arbitration clause, the parties requested that the Court order that the parties arbitrate the causes of action in Vista's Complaint and stay the district court action pending arbitration. In an order filed on August 19, 2004, Magistrate Judge Major ordered that this action was stayed pending the outcome of arbitration.

  On February 25, 2005, the Court held a status conference regarding the status of the arbitration. At the hearing, counsel for Vista informed the Court that they had not been able to obtain permission from Vista to file a demand for arbitration and that they wished to withdraw as counsel for Vista.

  On March 10, 2005, Defendants filed a motion to dismiss for failure to arbitrate. Subsequently, Vista filed a cross-motion for enlargement of time to arbitrate. In an order filed on April 18, 2005, the Court denied Defendants' motion to dismiss without prejudice and granted Vista additional time to submit its claims to arbitration. The order provided: "Plaintiff must commence arbitration no later than September 1, 2005. Plaintiff must file proof of its compliance with this order on or before September 6, 2005. If Plaintiff fails to do so, the Court may dismiss this case with prejudice."

  In another order filed on April 18, 2005, the Court granted a motion filed by Vista's counsel to withdraw from any further representation of Vista. The order provided that Vista had thirty days to retain new counsel.

  It appears that Vista has not retained new counsel because no Notice of Appearance has been filed. Furthermore, Vista has not filed proof that it has commenced arbitration in compliance with the Court's order.


  Once again, Defendants seek dismissal of this action under Federal Rule of Civil Procedure ยง 41(b). Defendants argue that dismissal is warranted due to Vista's failure to comply with the Court's April 18, 2005 order and its continued failure to prosecute its claims in arbitration. The Court agrees.

  When deciding a motion to dismiss for failure to prosecute, a district court is required to weigh the following factors: (1) the court's need to manage its docket; (2) the public interest in expeditious resolution of litigation; (3) the risk of prejudice to defendants from delay; and (4) the policy favoring disposition of cases on their merits. Morris v. Morgan Stanley & Co., 942 F.2d 648, 651 (9th Cir. 1991). "The failure to prosecute diligently is sufficient by itself to justify a dismissal, even in the absence of a showing of actual prejudice to the defendant from the failure." Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976). However, courts are required to make a reasonable exploration of possible and meaningful alternatives to the sanction of dismissal. Id. at 525.

  This case has been stayed for over a year to allow arbitration of Vista's claims. The Court has given Vista ample opportunity to submit its claims to arbitration, but Vista has failed to do so. In addition, it appears that Vista has failed to secure new counsel to represent it in this case. No opposition papers were filed in response to Defendants' motion to dismiss, and it seems highly unlikely that Vista is in a position to arbitrate its claims at this time.

  Given Vista's apparent lack of interest in pursuing its claims, it would be unfair to Defendants to allow this case to continue any longer. Accordingly, the Court dismisses the case. Since the failure to arbitrate does not go to the merits of the dispute, the dismissal is without prejudice.


  For the reasons discussed above, Defendants' motion to dismiss for failure to arbitrate is GRANTED and this case is DISMISSED as to all Defendants WITHOUT PREJUDICE. The Clerk shall enter judgment accordingly.



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