ORDER DENYING DEFENDANT RANDY WILSON'S MOTION TO DISMISS
This action arises out of a motor vehicle accident that occurred on February 3, 2006, in Merced County. Defendant H&R Transport, LTD ("H&R") owned the truck, which was involved in a collision with plaintiff Przemyslaw Broncel ("Plaintiff"). Defendant Randy Wilson ("Wilson") was the driver of H&R's truck. Pending before the Court is Wilson's motion to dismiss Plaintiff's complaint for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). For the reasons stated below, Wilson's motion is denied.
On January 28, 2008, Plaintiff filed his complaint with the Merced County Superior Court. Plaintiff's complaint was rejected by the Clerk's Office. On March 13, 2008, Plaintiff filed his complaint in the Merced County Superior Court. On March 24, 2008, the Merced Superior Court issued a nunc pro tunc order, which backdated Plaintiff's complaint to January 28, 2008 and put Plaintiff within the two-year statute of limitations for a personal injury action. The state court issued the nunc pro tunc order because the court found that the complaint was rejected due to a clerical error. On April 9, 2008, H&R filed a notice of removal to this Court.
On July 31, 2009, H&R filed a motion for summary judgment and argued that Plaintiff's complaint was time barred because the state court order that backdated the complaint was erroneous. On August 21, 2009, the Court issued an order to show cause against Plaintiff regarding whether Wilson had been served. On or about September 14, 2009, Plaintiff filed a proof of service regarding the service effectuated on Wilson. See Doc. No. 39. On October 6, 2009, Plaintiff filed a more complete version of the proof of service. See Doc. No. 43. On October 8, 2009, the Court discharged the order to show cause because Plaintiff filed a proof of service that indicated that Wilson had been served with the summons and complaint on June 2, 2008. See Doc. 44.
On January 14, 2010, this Court denied H&R's motion for summary judgment. On January 27, 2010, H&R filed a motion for reconsideration of the state court order to this Court. On April 1, 2010, Wilson filed the instant motion to dismiss. On April 19, 2010, Plaintiff filed an opposition to Wilson's motion to dismiss. In opposition, Plaintiff's counsel, Joseph Low ("Low") contends that before the action was removed, on April 2, 2008, Plaintiff's former counsel, Sonia Chaisson ("Chaisson") requested that Legal Language Services effectuate service of process on Wilson in Canada pursuant to the Hague Convention. See April 19, 2010 Low Decl. ("Low Decl.") ¶4. On April 11, 2008, Chaisson submitted materials to Legal Language Services for purposes of serving Wilson in Canada. See Low Decl. ¶5. On June 2, 2008, Wilson was served with the complaint, summons, and state related documents in Canada. See Low Decl. Exhibit 3 - Proof of Service at page 2. Low declares that it was Plaintiff's understanding that H&R had given notice to all parties of its removal. See Low Decl. ¶7. Wilson did not file an answer. On March 2010, Plaintiff served Wilson in Canada with the complaint and removal papers. See Doc. No. 71.
On April 28, 2010, this Court granted H&R's motion for reconsideration and found that based on the evidence provided by the parties, the state court order was erroneously granted and therefore Plaintiff's complaint was not properly backdated to January 28, 2008. On May 25, 2010, Plaintiff filed a motion for reconsideration of the Court's April 28, 2010 order. On September 9, 2010, the Court granted Plaintiff's motion based on Plaintiff's newly submitted evidence, which indicated that the state court order was not erroneously granted.
Wilson argues that the complaint should be dismissed against him because Plaintiff effectuated insufficient service of process and did not give Wilson proper notice. Wilson argues that Plaintiff did not properly serve him until March 11, 2010.*fn2
Plaintiff argues that dismissal is not warranted because there is no prejudice to Wilson since he has had actual notice of the complaint since June 2008 and because the parties have not taken depositions or served interrogatories.*fn3
Assuming arguendo that Plaintiff provided insufficient service of process to Wilson because Plaintiff did not serve the complaint with the notice of removal papers until March 2010, the Court nonetheless finds that dismissal is not warranted in this case. District courts have inherent power to control their dockets. In the exercise of that power they may impose sanctions including, where appropriate, default or dismissal. Thompson v. Housing Auth. of Los Angels, 782 F.2d 829, 831 (9th Cir. 1986). Dismissal, however, is so harsh a penalty it should be imposed as a sanction only in extreme circumstances. Id. Before imposing dismissal as a sanction under Rule 41(b) the court must weigh the following 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 defendant; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Id. The Ninth Circuit holds that it ...