United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS RE: DKT. NO.
PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGE
the court is defendant Pape Material Handling, Inc.'s
motion for involuntary dismissal of the above-captioned
action; the second such motion filed in this action. As with
defendant's prior motion for involuntary dismissal, pro
se plaintiffs Gumildo De La Luz and Silvia Sanchez have not
filed an opposition. As such, the matter is fully briefed and
the court finds it is suitable for decision without oral
argument. Accordingly, the hearing set for June 13, 2018, is
VACATED. Having an extensive and independent understanding of
plaintiffs' failure to prosecute this action, and having
read defendant's motion and carefully considered the
arguments and the relevant legal authority therein, and good
cause appearing, the court hereby GRANTS defendant's
explained in this court's prior orders, since filing this
litigation almost two years ago and especially since
plaintiffs' then-counsel withdrew over a year ago, the
court has provided plaintiffs with ample opportunities to
diligently prosecute this litigation. See Dkts. 36,
38, 47, 49, 55-57, 59. Plaintiffs have failed to do so. As
explained in this court's prior order:
Amongst other conduct indicating plaintiffs' failure to
prosecute this action, plaintiffs have wholly failed to
participate in discovery. Though plaintiffs chose November
29, 2017, as the date of their deposition, they failed to
appear on that date-without any explanation or notice to
defense counsel. Dkt. 54-1, Menendez Decl. ¶ 11. In
response to this failure and plaintiffs' general failure
to respond to propounded discovery, the defendant filed a
motion to compel. Dkt. 46. After plaintiffs failed to respond
to that motion, the court granted the defendant's motion
and ordered plaintiffs to respond to defendant's
propounded discovery by December 28, 2017. Dkt. 49.
Plaintiffs also failed to comply with that order. Menendez
Decl. ¶ 12 (Defendant did not receive any discovery
Dkt. 55 at 1.
plaintiffs failed to file an opposition to defendant's
first motion for involuntary dismissal, the court ordered
plaintiffs to respond and warned that failure to do so would
result in the action being dismissed with prejudice.
Id. at 1-2. Plaintiffs did not comply with that
order. Plaintiffs, however, did appear for the hearing on
that motion, at which point the court denied defendant's
motion without prejudice and set forth specific discovery
conditions designed to ensure plaintiffs fully and promptly
participated in the litigation. Dkt. 56 at 1-2. Those
conditions included a requirement that plaintiffs respond to
defendant's written discovery by March 30, 2018, and mail
a copy of those responses to the court. Dkt. 56 at 2. The
court again warned that “If plaintiffs fail to comply
with any part of th[at] order, their case will be dismissed
with prejudice.” Dkt. 56 at 2.
again failed to comply. Though the court received certain
discovery-related documents from plaintiffs on March 29,
2018, defendant did not receive any discovery responses by
the March 30, 2018 deadline. Dkt. 59 at 1-2. The court
subsequently sent plaintiffs' discovery-related documents
to defendant and warned plaintiffs that “[a]ny future
failures by plaintiffs to promptly fulfill their
discovery obligations or to comply with this court's
orders will result in dismissal of this action.” Dkt.
59 at 2 (emphasis in original). Defendant then sent
plaintiffs a meet and confer letter regarding deficiencies in
plaintiffs' discovery responses. Dkt. 69-2, Ex. F.
Neither the court nor defendant received any further
discovery responses from plaintiffs. See Dkt. 69-1
8, 2018, defendant renewed its motion for involuntary
dismissal. As indicated above, plaintiffs again
failed to file any response to that motion.
Federal Rule of Civil Procedure 41(b) and Rule 37(b)(2) allow
a court to dismiss an action if the plaintiff fails to
prosecute the action or fails to comply with a court order.
The Ninth Circuit applies the same five-factor standard in
Rule 41 (b) cases as it does in Rule 37(b) cases: “(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 alternatives.”
Yourish v. California Amplifier, 191 F.3d 983,
989-990 (9th Cir. 1999); Baeza v. Baca, 700
Fed.Appx. 657, 658 (9th Cir. 2017); Valley Eng'g Inc.
v. Elec. Eng'g Co., 158 F.3d 1051, 1056-57 (9th Cir.
court has no doubt that those factors support dismissal here.
With few exceptions, plaintiffs have entirely failed to
prosecute this litigation since February 2017 and,
accordingly, the litigation has not progressed. Additionally,
as detailed above, plaintiffs have consistently failed to
comply with this court's orders. In three of those
instances, the court explicitly warned that plaintiffs'
failure to comply with the court's order or fulfill their
discovery obligations would result in dismissal of the
action. Those facts alone show that plaintiffs have failed to
prosecute this litigation with reasonable diligence. That
“is sufficient by itself to justify a dismissal, even
in the absence of a showing of actual prejudice to the
defendant from the failure.” Anderson v. Air West,
Inc., 542 F.2d 522, 524 (9th Cir. 1976); Baeza,
700 Fed.Appx. at 658 (same). The same facts show factors
(1)-(3), and (5) warrant dismissal.
accordance with the foregoing, defendant's motion to
dismiss is GRANTED and the ...