The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
On August 17, 2007, Defendants filed a motion to dismiss Plaintiff's complaint for failure to appear at a mandatory settlement conference, failure to appear for deposition, and failure to comply with pretrial requirements. (Doc. No. 30.) Further, the Court entered an order requiring Plaintiff to appear for her deposition, requiring her to personally appear at the pretrial conference and hearing on Defendants' motion to dismiss, requiring her to comply with all pretrial requirements, and warned of the possibility of terminating sanctions for failing to comply. (Doc. No. 29.) Plaintiff did not file an opposition to Defendants' motion to dismiss.
The Court held the pretrial conference and hearing on Defendants' motion to dismiss on August 27, 2007. Plaintiff's counsel, James Dunn, appeared telephonically, but Plaintiff failed to appear as ordered by the Court. George Schaefer appeared on behalf of Defendants. Plaintiff's counsel represented that he did not oppose the motion to dismiss and that he had lost contact with Plaintiff.
Rule 41(b) of the Federal Rules of Civil Procedure provides that a defendant may move for dismissal based upon the failure of a plaintiff to prosecute or failure to comply with court orders and the Federal Rules of Civil Procedure. Additionally, Rule 37 of the Federal Rules of Civil Procedure authorizes a court to dismiss any part of an action or to render judgment by default against a party who fails to appear for a court ordered deposition. See Fed. R. Civ. P. 37(b)(2)(C) & (d).
The Ninth Circuit has set forth the following five part test for determining when dismissal sanctions are just: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the [party seeking sanctions]; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Valley Eng'rs, Inc. v. Elec. Eng'g Co., 158 F.3d 1051, 1057 (9th Cir. 1998); Dahl v. City of Huntington Beach, 84 F.3d 363, 366 (9th Cir. 1996). Because the first and second factors typically support sanctions while the fourth disfavors dismissal, prejudice to the moving party and the availability of less drastic sanctions, the third and fifth factors, are usually decisive. Valley Eng'rs, 158 F.3d at 1057. A presumption of prejudice arises from a Plaintiff's unexplained failure to prosecute. See, e.g., Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 1992). The Ninth Circuit has indicated "that factor 5 involves consideration of three subparts: whether the court explicitly discussed alternative sanctions, whether it tried them, and whether it warned the recalcitrant party about the possibility of dismissal." Valley Eng'rs, 158 F.3d at 1057 (citing Malone v. U.S. Postal Serv., 833 F.2d 128, 132 (9th Cir.1987)). Nevertheless, "despite all this elaboration of factors, [the Ninth Circuit has] said that it is not always necessary for the court to impose less serious sanctions first, or to give any explicit warning." Id. (citing Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1413 (9th Cir. 1990)).
Looking at the Valley Engineers factors, as the Ninth Circuit noted, the first and second factors weigh in favor of dismissal here. Further, while the fourth factor generally disfavors dismissal, Plaintiff does not oppose dismissal here, and the Ninth Circuit has noted that this factor is not enough to preclude imposition of sanctions where other factors weigh in favor of sanctions. See Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). Looking at the third factor, the risk of prejudice to Defendants is high. The Court has already held the pretrial conference, and contrary to Court order and rules, Plaintiff has not participated in any discovery or pretrial preparations. Defendants have had no opportunity to depose Plaintiff and fully prepare a defense before trial. Turning to the fifth factor, the availability of less drastic sanctions, the Court has not imposed any sanctions up until this point and explicitly warned Plaintiff that failure to comply could result in terminating sanctions. Nevertheless, Plaintiff did not appear for the Court-ordered deposition and did not appear for the pretrial conference and hearing. Under these circumstances, particularly in light of Plaintiff's non-opposition to Defendants' motion, terminating sanctions are appropriate. See, e.g., Valley Eng'rs, 158 F.3d at 1057. Accordingly, having considered the papers, the record, and the parties representations, the Court GRANTS Defendants' motion to dismiss this case. The Clerk of Court shall close this case.
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