United States District Court, S.D. California
ORDER: (1) GRANTING DEFENDANT'S MOTION TO DISMISS
[DOC. 67]; AND (2) DENYING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT AS MOOT [DOC. 68]
THOMAS J. WHELAN UNITED STATES DISTRICT JUDGE
before the Court are: (1) Defendant's motion to dismiss
pursuant to Federal Rule of Civil Procedure 41(b); and (2)
Defendant's motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56. [Docs. 67, 68.] The Court
decides the matters on the papers submitted and without oral
argument. See Civ. L.R. 7.1(d)(1). For the reasons
below, the Court GRANTS the motion to
dismiss, and DENIES AS MOOT the motion for
Reno Contracting (“Reno”) brought this action in
the Superior Court of California against Defendant Crum and
Forster Specialty Insurance Company (“Crum &
Forster”) on November 15, 2017, alleging that Crum
& Forster had failed to defend and indemnify it in
underlying litigation per the terms of an insurance policy.
(Compl. [Doc. 1-2, Exh. 1].) Defendant removed the
action on February 28, 2018. (Notice of Removal
moved for partial summary judgment on November 2, 2018.
(Def.'s Partial MSJ [Doc. 29].) The Court
granted in part and denied in part that motion, holding per
Rule 56(g) that “[t]he Reno Contracting Policy provided
no insurance coverage for the underlying litigation.”
(February 21, 2019 Order [Doc. 44].)
on March 21, 2019, Plaintiff filed a motion to substitute
attorney. (Reno Contracting Mot. to Substitute [Doc.
51]; Coyle/Reno Mot. to Substitute [Doc. 52].) The
motion was granted. (Apr. 3, 2019 Order [Doc. 54].)
Plaintiff thereafter ceased participating in the case.
Specifically, Plaintiff failed to lodge a Mandatory
Settlement Conference (“MSC”) statement by the
due date, failed to respond to a minute order alerting it of
that fact, failed to appear at the MSC, and then failed to
respond to an Order to Show Cause (“OSC”) or to
appear at the OSC hearing. (See OSC [Doc. 60];
Minute Entry [Doc. 62].) Judge Burkhardt imposed
monetary sanctions on Plaintiff and its attorney, jointly and
severally, in the amount of $2, 473.52. (June 12, 2019
Order [Doc. 69].) The order imposing those sanctions on
Plaintiff and Plaintiff's counsel was returned as
undeliverable. [Doc. 70.]
now moves to dismiss Plaintiff's complaint with prejudice
pursuant to Rule 41(b), and for summary judgment.
(Def.'s MTD [Doc. 67-1]; Mot. for Summary
Judgment [Doc. 68].) Plaintiff does not oppose either
motion. For the reasons that follow, the motion to dismiss
will be granted. The motion for summary judgment will be
denied as moot.
Legal Standard A.Motion to
Dismiss Pursuant to Fed.R.Civ.P. 41(b)
Rule 41(b) provides:
If the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the
action or any claim against it. Unless the dismissal order
states otherwise, a dismissal under this subdivision (b)
… operates as an adjudication on the merits.
41(b) dismissal “must be supported by a showing of
unreasonable delay.” Henderson v. Duncan, 779
F.2d 1421, 1423 (9th Cir. 1986). A district court must
further weigh: “(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,
779 F.2d at 1423); In re Phenylpropanolamine (PPA) Prods.
Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006).
Dismissal is appropriate where at least four factors support
dismissal, or where three factors strongly support dismissal.
See Frederik v. Bonzelet, 963 F.2d 1258, 1263 (9th
Motion to Dismiss Pursuant to Fed.R.Civ.P. 41(b)
preliminary matter, Plaintiff has consented to the dismissal
of this case by failing to oppose Defendant's motion to
dismiss. See Judge Whelan Chambers Rule 3(d); Civ.
L.R. 7.1(f)(3)(c). Moreover, the following ...