United States District Court, N.D. California
ORDER DENYING MOTION TO DISMISS Re: ECF No. 61.
JON S. TIGAR, District Judge.
In this action for violations of 42 U.S.C. § 1983 and related claims, Defendants move to dismiss the complaint with prejudice on the ground that Plaintiffs have failed to prosecute this action and have failed to comply with this Court's orders. Plaintiffs oppose the motion. For the reasons set forth below, the motion is DENIED.
A. The Parties and Claims
This action arises out of the death of John Wayne McGee ("the decedent"), which took place while he was incarcerated in Alameda County's Santa Rita Jail. The gravamen of the complaint is that Defendants deprived him of his civil and constitutional rights by using excessive force against him and by being deliberately indifferent to his medical needs. The operative complaint asserts the following claims for relief: (1) wrongful death under 42 U.S.C. § 1983; (2) deprivation of due process under 42 U.S.C. § 1983; (3) deliberate indifference under 42 U.S.C. § 1983; (4) "survival action" under 42 U.S.C. § 1983; and (5) negligence. Third Am. Compl. ("TAC"), ECF No. 60. A detailed summary of the allegations supporting these claims can be found in this Court's order of March 21, 2014. ECF No. 58.
Originally, this action was filed by Jahn McGee, the decedent's wife; the decedent's estate; and Carolyn Copeland, the decedent's mother. First Am. Compl., ECF No. 15. On September 17, 2013, the Court granted Plaintiffs' motion to substitute Joe Pervoe as successor-in-interest to Jahn McGee, both in her individual capacity and as successor-in-interest to John Wayne McGee and his estate. ECF No. 47. Accordingly, the only remaining Plaintiffs at this stage are Joe Pervoe and Carolyn Copeland.
B. Procedural History
Plaintiffs originally sued Defendants County of Alameda ("the County"), Alameda County Sheriff Gregory J. Ahern, and DOES 1-50, who represented several unidentified deputies of the Alameda County Sheriff's Department. First Am. Compl. ("FAC") ¶¶ 3-7, ECF No. 15.
On May 20, 2013, the Court dismissed the FAC with leave to amend because only one of the seven claims in the complaint was asserted against a named Defendant, and that claim was insufficiently pleaded. ECF No. 34. The deadline for filing an amended complaint was June 9, 2013. Id . Because Plaintiffs failed to file an amended complaint by that date, the Court issued an order to show cause why this action should not be dismissed for failure to prosecute, and it required Plaintiffs either to file a response to that order or to file an amended complaint by July 31, 2013. ECF No. 36. Plaintiffs did not comply with the order to show cause. A week after the deadline for responding to the order to show cause, however, Plaintiffs filed a second amended complaint. See Second Am. Compl. ("SAC"), ECF No. 38.
The Court held a case management conference on August 28, 2013, during which it permitted Plaintiffs to proceed with their claims despite their admitted failure to comply with the order to show cause, but only if they served the remaining "Doe" defendants shortly after the conference. ECF No. 44. Plaintiffs served the remaining "Doe" Defendants on September 3, 2013. ECF No. 46.
In October 2013, Defendants moved to dismiss the complaint for failure to prosecute under Rule 41(b), for failure to serve Doe defendants within 120 days of serving the complaint under Rule 4(m), and for failure to state a claim under Rule 12(b)(6). The Court granted the motion in part and denied it in part. ECF No. 58. The Court dismissed with prejudice Plaintiffs' claims for intentional infliction of emotional distress ("IIED"), assault, and battery, but it declined to dismiss the remaining claims, either for failure to prosecute or for failure to state a claim. Specifically, with respect to Defendant's failure-to-prosecute arguments, the Court reasoned that a dismissal on that ground was unjustified because Plaintiffs had demonstrated good cause for having failed to comply with the Court's orders and for having failed to serve "Doe" defendants within the relevant time period. The Court, however, explicitly reserved the right "to consider future motions to dismiss for failure to prosecute if future circumstances warrant." ECF No. 58 at 4-5. The Court set the deadline for filing an amended complaint that reflected its rulings with respect to the three dismissed claims-IIED, assault, and battery-for April 4, 2014.
Plaintiffs failed to file the TAC by the April 4 deadline. Instead, Plaintiffs filed the TAC on April 17, 2014, without first seeking either leave of Court to file an untimely pleading or an extension of the deadline for filing the amended complaint. ECF No. 60.
Defendants now move to dismiss the complaint with prejudice for under Rule 41(b) on the ground that Plaintiffs have a long history of failing to comply with the Court's deadlines, and that Plaintiffs' untimely filing of the TAC constitutes another instance of dilatory conduct that warrants dismissal for failure to prosecute. Defendants filed an answer to the TAC on the same day they filed this motion to dismiss. ECF No. 62.
Plaintiffs oppose the motion, arguing that the untimely filing of the TAC was caused by an "honest mistake resulting from inadvertent internal ...