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Desert Valley Hospital, Inc. v. Blue Cross-Blue Shield of Alabama

August 14, 2012

DESERT VALLEY HOSPITAL, INC.
v.
BLUE CROSS-BLUE SHIELD OF ALABAMA, ET AL.



The opinion of the court was delivered by: Honorable Margaret M. Morrow

JS-6

CIVIL MINUTES - GENERAL

Present: The Honorable MARGARET M. MORROW

R. Neal for ANEL HUERTA N/A Deputy Clerk Court Reporter Attorneys Present for Plaintiff: Attorneys Present for Defendant: None None

Proceedings: Order Dismissing Case

On November 8, 2010, Desert Valley Hospital, Inc. commenced this action against multiple defendants, all of which are Blue Cross Blue Shield health insurance companies, alleging violations of the Employee Retirement Income Security Act ("ERISA").*fn1 On July 20, 2012, the court dismissed Desert Valley's claims against Blue Cross Blue Shield of Michigan associated with account numbers V00001011650, V00090225107, V00090162709, V00000188027, V00090217105, V00090217783, V0000911140, V00000807929, V00001024337, V00001000519, V00000970026, V00001055669, V00000899670, V00090124125, and V00090124104, as reflected on the spreadsheets

Case 2:10-cv-08483-MMM-DTB Document 127 Filed 08/14/12 Page 2 of 4 Page ID #:976

attached to Desert Valley's complaint, with prejudice.*fn2 The court granted Desert Valley leave to amend its complaint to assert claims associated with these account numbers against another defendant or defendants, however.*fn3 The court dismissed the balance of the complaint with leave to amend. The court granted Desert Valley leave to file an amended complaint addressing the deficiencies noted in its order within twenty (20) days of the date of the order.*fn4 To date, Desert Valley has not filed an amended complaint.

Rule 41(b) permits courts to dismiss an action sua sponte for failure to comply with a court order. See, e.g., Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962) ("The authority of a court to dismiss sua sponte . . . has generally been considered an 'inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs. . . . It would require a much clearer expression of purpose than Rule 41(b) provides for us to assume that it was intended to abrogate so well-acknowledged a proposition"); Yourish v. California Amplifier, 191 F.3d 983, 986 (9th Cir. 1999) (holding that a district court did not abuse its discretion in sua

dismissing a complaint for failure to comply with a court order); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming a lower court's dismissal for failure to follow court orders).

Where, as here, a plaintiff whose complaint has been dismissed with leave to amend takes no action, the Ninth Circuit has held that the appropriate response is the sanction of a Rule 41(b) dismissal. See, e.g., Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004) ("Yourish

Ferdik both arose when plaintiffs, given the opportunity to amend or be dismissed, did nothing. In that situation, resources continue to be consumed by a case sitting idly on the court's docket. The failure of the plaintiff eventually to respond to the court's ultimatum -- either by amending the complaint or by indicating to the court that it will not do so -- is properly met with the sanction of a Rule 41(b) dismissal. . . . Hence we understand the Ferdik-Yourish rule to require a threatened Rule 12(b)(6) dismissal to ferment into a Rule 41(b) dismissal only upon a plaintiff's inaction. When the plaintiff timely responds with a formal notice of his intent not to amend, the threatened dismissal merely ripens into a final, appealable judgment" (citations omitted)); see also, e.g., Grubb v. Hernandez, No. ED CV 06-00807 SJO (AJW), 2009 WL 1357411, *4 (C.D. Cal. May 1, 2009) ("Plaintiff has not clearly made and communicated an affirmative choice to stand on his dismissed complaint and forgo amendment. Therefore, under the reasoning of Edwards, dismissal of this action with prejudice under Rule 41(b) is appropriate").

Involuntary dismissal with prejudice is appropriate when a majority of the following factors favor dismissal: (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 defendants; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on the merits. Pagtalunan v. , 291 F.3d 639, 642 (9th Cir. 2002); Ferdik, 963 F.2d at ...


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