United States District Court, N.D. California
ORDER FOR CLERK OF COURT TO REASSIGN CASE REPORT & RECOMMENDATION
MARIA-ELENA JAMES, Magistrate Judge.
On August 22, 2012, Plaintiff Margaret Eve-Lynne Miyasaki filed the above-captioned case against Defendant Kyna Treacy. Dkt. No. 1. Although the case has been pending for over two years, Plaintiff has not served Defendant, despite multiple requests for continuances of the time for service. On October 22, 2014, the Court issued a third order to show cause ordering Plaintiff to show cause by November 3, 2014, why this case should not be dismissed for failure to prosecute and failure to comply with court deadlines. Dkt. No. 27. The Court provided notice to Plaintiff that it may dismiss the case if she failed to respond by the deadline. As of the date of this Order, no response has been received. Based on this procedural history, the Court finds it appropriate to dismiss this case pursuant to Federal Rule of Civil Procedure 41(b).
Plaintiff created "Verdant Garden, " a wearable textile fabric that incorporates a unique crochet stitch pattern. Compl. ¶ 4. Plaintiff has published her artwork since 1998, in conformity with the federal Copyright Act of 1976, 17 U.S.C. § 401. Id. ¶ 5. She alleges that Defendant infringed the copyright by manufacturing or causing to be manufactured copies of Plaintiff's crochet stitch pattern without her consent. Id. ¶ 8. Plaintiff alleges that Defendant is a resident of Australia. Id. ¶ 2.
As there was no indication that Defendant had been served, the Court vacated the initial Case Management Conference ("CMC") and ordered Plaintiff to file a status report by December 6, 2012. Dkt. No. 3. Plaintiff responded that she sent copies of the complaint and summons to Defendant by international registered mail, return receipt requested, pursuant to Federal Rule of Civil Procedure ("Rule") 4(f)(2)(C)(ii). Dkt. No. 5. Based on Plaintiff's report, the Court continued the CMC to February 14, 2013, with a CMC statement due by February 7. Dkt. No. 7. However, as Plaintiff failed to file a CMC statement by February 7, the Court vacated the CMC and ordered Plaintiff to file an updated status report by February 21, 2013. Dkt. No. 8. In her second report, filed February 25, Plaintiff stated that the complaint and summons had been returned as undeliverable, and that she would attempt service by an Australian process server and effect personal service pursuant to Rule 4(f)(2)(C)(i). Dkt. No. 9. Given Plaintiff's statement, the Court did not set any deadlines as that time.
As of May 15, 2013, there was still no indication that service had been completed, and the Court therefore ordered Plaintiff to file an updated status report by May 30. Dkt. No. 10. Plaintiff failed to respond. Thus, the Court issued an order show cause ("OSC") why the case should not be dismissed for failure to prosecute and failure to comply with court deadlines. Dkt. No. 11. Plaintiff responded that she was still attempting to serve Defendant personally in Australia, but all of the process servers to whom she had spoken limited their service of process to cases in Australian courts. Dkt. No. 12. However, Plaintiff stated that she could effect service of process within the next 90 days. The Court discharged the OSC and ordered Plaintiff to file an updated status report by September 5, 2013. Dkt. No. 14.
In her fourth status report, filed September 5, Plaintiff stated that she had located a new address for Defendant and would attempt to serve her by international registered mail "within the week." Dkt. No. 15. Plaintiff also indicated that she was still attempting personal service and therefore requested that the Court set a further status conference in 90 days. As the case had been pending for over one year, the Court set the matter for a status conference on December 12, 2013, and ordered Plaintiff to file a status report by December 4. Dkt. No. 16.
On December 10, 2013, Plaintiff filed her fifth status report, indicating that she was still attempting to effect service of process on Defendant and requesting that the Court continue the case for another 90 days. Dkt. No. 17. On December 18, the Court granted her request and continued the status conference to March 13, 2014. Dkt. No. 18. The Court ordered Plaintiff to file a sixth status report by March 6, 2014, and noted that if Plaintiff had not effected service by then, she must also show cause why the case should not be dismissed. Id. However, in her March 6 status report, Plaintiff stated only that she was still attempting to personally serve Defendant. Dkt. No. 19. Neither Plaintiff nor her counsel appeared at the March 13 status conference. Dkt. No. 20.
On March 14, 2014, the Court issued a second OSC for failure to prosecute and failure to comply with Court deadlines. Dkt. No. 21. The Court ordered Plaintiff to file a declaration by April 17, 2014, advising the Court of the efforts she had taken to serve Plaintiff since March 6, 2014, and scheduled a hearing on April 24, 2014. Id. On Plaintiff's timely motion (Dkt. No. 22), the Court continued the written response date to May 1, 2014, and the hearing date to May 8, 2014. Dkt. No. 23. Plaintiff filed a response on April 30, 2014, indicating that a service processor in Australia confirmed that the addresses Plaintiff had were all former addresses for Defendant, and that all the information he had been able to locate indicated that Defendant no longer resided in Sydney, Australia. Dkt. No. 24. Plaintiff stated that she believed Defendant obtained permanent resident status in the United States and may have obtained a work permit under a specialty occupation as a professional model. Id. Plaintiff also stated that she intended to either obtain address information from the U.S. Citizen and Immigration Services or locate Defendant through a skip tracing or other service. Id. Based on this updated information, the Court discharged the second OSC and ordered Plaintiff to file a status report by July 1, 2014.
Plaintiff filed her seventh status report on June 30, 2014, indicating that she was still attempting to effect service of process on Defendant but that she intended "to file a motion to permit alternative service on defendant shortly." Dkt. No. 26. Given Plaintiff's intent to file a motion, the Court did not set any deadlines at that time. However, as of October 22, 2014, nearly four months after her last status report, Plaintiff had not filed a motion or otherwise updated the Court as to the status of her service attempts. As the case had now been pending for over two years, and it appeared that Plaintiff had not been diligent in her attempts to serve Defendant, the Court issued a third OSC. Dkt. No. 27. The Court ordered Plaintiff to file a declaration by November 3, 2014, and warned Plaintiff that the Court may dismiss the case if no responsive declaration was filed. Id. Plaintiff has failed to respond.
III. LEGAL STANDARD
Under Rule 41(b), "the district court may dismiss an action for failure to comply with any order of the court." Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); see also Oliva v. Sullivan, 958 F.2d 272, 273-74 (9th Cir. 1992) (district court may dismiss sua sponte for failure to meet court deadline). "[T]he district court must weigh the following factors in determining whether a Rule 41(b) dismissal is warranted: (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; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.'" Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). "These factors are not a series of conditions precedent before the judge can do anything, ' but a way for a district judge to think about what to do.'" In re Phenylpropanolamine (PPA) Prods. Liab. Litig. (" In re PPA "), 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting ...