The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge
MEMORANDUM AND ORDER DISMISSING CASE WITH PREJUDICE PURSUANT TO FED. R. CIV. P. 41(b)
This case was initiated as a state court complaint for misappropriation of trade secrets and unfair competition and was removed to this Court on diversity of citizenship grounds on November 19, 2010. Plaintiff is Jack Joyner. Defendants are Ken Rittmann, Jim Hewetson, and Functional Devices, Inc.
This case is dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute. Plaintiff essentially has abandoned the case, refusing to communicate with his own counsel, opposing counsel or the Court, refusing to respond to discovery and to Defendants' Motion to Dismiss, and repeatedly disregarding Court orders.
Plaintiff's counsel was given permission to withdraw on May 3, 2011, citing an irremediable breakdown in the attorney-client relationship and no communication with Plaintiff for over six weeks. On May 9, 2011, the Court vacated a status conference scheduled May 10, 2011, at the request of Defendants because they had been unable to communicate with Plaintiff. Defendants were ordered to contact the clerk when they were able to reach Plaintiff, at which point the Court would set another status conference.
When Defendants were unable to reach Plaintiff, the Court set a status conference for June 30, 2011. All parties were ordered to appear.
On June 6, 2011, Defendants filed a Motion to Dismiss based on Plaintiff's failure to respond to discovery due May 23, 2011, and failure to respond to letters and emails regarding the status conference and the outstanding discovery. The status conference set for June 30, 2011, was moved to July 7, 2011, the date of the hearing on Defendants' Motion to Dismiss. Mr. Joyner has not responded to Defendants' discovery, did not file any opposition to the Motion to Dismiss, and did not appear at the July 7, 2011, hearing despite the order to appear.
On July 7, 2011, the Court continued the status conference to August 4, 2011. All parties were ordered to appear. Plaintiff was ordered to show cause why the action should not be dismissed. Plaintiff also was ordered to provide the Court with a current address in accordance with Local Rule 41-6.
In an abundance of caution to be certain that Plaintiff was served with the Court's orders, Defendants were instructed to undertake efforts to contact Plaintiff and to file a declaration setting forth those efforts. Defense counsel Kevin Wheeler filed a declaration on August 2, 2011, detailing his efforts to contact Plaintiff. Mr. Wheeler tried to contact Plaintiff by letter, email, and telephone voicemail but received no return communication from Plaintiff. Mr. Wheeler then dispatched a process server who was able to locate Plaintiff at a boat slip in Santa Barbara and served him with the Order to Show Cause. A proof of service of same was filed with the Court. Defendants incurred $5,775.85 in fees and costs in attempting to locate Plaintiff and file their Motion to Dismiss.
At the August 4, 2011, hearing, Plaintiff did not appear despite the order to appear. The Court then delayed the hearing a half hour. Plaintiff has never appeared or communicated with the Court.
The Court has the inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute and failure to comply with court orders. See Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962); see also Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002). A dismissal under Rule 41(b) - other than for lack of jurisdiction, improper venue, or failure to join a party - operates as an adjudication on the merits. Fed. R. Civ. P. 41(b).
Because dismissal is a harsh penalty, the Court must weigh five factors when considering whether to dismiss an action for failure to prosecute: (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/respondents; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. Pagtalunan, 291 F.3d at 642; Al-Torki v. Kaempen, 78 F.3d 1381, 1384-85 (9th Cir. 1996). Having weighed these factors, the Court finds that dismissal of this action with prejudice is warranted.
In the instant case, the first two factors favor dismissal. "[T]he public's interest in expeditious resolution of litigation always favors dismissal." Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). The Court twice served Plaintiff with an Order to Show Cause why the case should not be dismissed for failure to prosecute. Plaintiff failed to provide discovery or respond to Plaintiff's Motion to Dismiss and disregarded Court orders to appear at scheduling conferences. Plaintiff's conduct hinders the Court's ability to move this case toward disposition and indicates that Plaintiff does not intend to litigate this action ...