United States District Court, S.D. California
November 7, 2005.
VISTA ENTERPRISES, INC., Plaintiff,
ACTUS CORPORATION, et al., Defendants.
The opinion of the court was delivered by: BARRY MOSKOWITZ, District Judge
ORDER GRANTING MOTION TO DISMISS CASE FOR FAILURE TO ARBITRATE
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 § 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.
IT IS SO ORDERED.
© 1992-2005 VersusLaw Inc.