United States District Court, E.D. California
ORDER DISMISSING CASE PURSUANT TO RULE
L. NUNLEY UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Morton Golf,
LLC's (“Defendant”) Motion to Dismiss for
failure to prosecute pursuant to Federal Rule of Civil
Procedure 41(b). (ECF No. 36.) Plaintiff Francis Mahon
(“Plaintiff”) opposes the motion. (ECF No. 37.)
For the reasons set for below, Defendant's motion is
hereby DENIED, however, this case is DISMISSED without
prejudice pursuant to Federal Rule of Civil Procedure
Factual and Procedural Background
initial Complaint was removed to this Court on December 24,
2014, and alleged violations of the Americans with
Disabilities Act (“ADA”) and California's
Unruh Civil Rights Act (“Unruh Act”). (ECF No.
1.) Plaintiff, a golfer with a disability, alleged
Defendant's prohibition against him using his electric
wheelchair on its golf course violated both state and federal
law. (ECF No. 1. at 17, 19.)
the Court's denial of Plaintiff's motion for a
preliminary injunction, (ECF No. 24) Defendant filed a motion
for sanctions arguing Plaintiff's motion seeking a
preliminary injunction was “legally and factually
baseless” (ECF No. 25). On October 3, 2018, the Court
denied Defendant's motion and noted that the basis for
the requested sanctions, Plaintiff's motion for a
preliminary injunction, contained “arguably reasonable
legal claims.” (ECF No. 29 at 5.) The Court then issued
an Order on October 4, 2018, requesting the parties file a
joint status report within thirty days indicating the
parties' readiness to proceed to trial. (ECF No. 30.)
Defendant submitted a separate status report on November 2,
2018. (ECF No. 31.) That same day, Plaintiff's counsel
filed a Suggestion of Death notifying the Court and Defendant
that Plaintiff died on July 3, 2018. (ECF No. 32.) Plaintiff
did not file a separate status report.
response to Defendant's separate status report, on
November 14, 2018, the Court ordered Plaintiff to show cause
as to why he should not be sanctioned for his failure to
participate in the status report. (ECF No. 33.) On November
28, 2018, Plaintiff filed a response to the Court's Order
to show cause and urged the Court to dismiss the case
pursuant to Federal Rule of Civil Procedure 25 if no
successor of Plaintiff moved to substitute in as a party.
(ECF No. 34 at 1-2.)
the Suggestion of Death was filed (ECF No. 32), neither party
filed a motion to substitute pursuant to Federal Rule of
Civil Procedure 25(a)(1). On December 26, 2018, Defendant
filed a Motion to Dismiss for Lack of Prosecution urging the
Court to dismiss the matter without prejudice pursuant to
Federal Rule of Civil Procedure 41(b). (ECF No. 36 at 2.)
Plaintiff submitted an opposition to Defendant's Motion
(ECF No. 37) to which Defendant submitted a reply (ECF No.
Standard of Law
Federal Rule of Civil Procedure 41(b): Dismissal for
Failure to Prosecute
the plaintiff fails to prosecute [. . .], a defendant may
move to dismiss the action or any claim against it.”
Federal Rule of Civil Procedure (“Rule”) 41(b).
Rule 41(b) is, in large part, a “housekeeping
measure” which allows federal courts to manage their
dockets. Nealey v. Transportacion Maritima Mexicana, S.
A., 662 F.2d 1275, 1279 (9th Cir. 1980). However,
“dismissal under Rule 41(b) is a sanction, to be
imposed only in ‘extreme circumstances.'”
Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063
(9th Cir. 2004). The district court must weigh the following
five factors in considering a motion under Rule 41(b): (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 the merits; and (5)
the availability of less drastic alternative. Yourish v.
Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 2004). In
examining these factors, the court is not required to make an
explicit finding to show it has considered these factors.
Federal Rule of Civil Procedure 25(a): Dismissal upon
Death of Party
25(a) provides that if a party dies and the claim is not
extinguished, the court may order substitution, upon motion
made by any party or the decedents successor or
representative. Rule 25(a). “If the motion is not made
within 90 days after service of statement noting the death,
the action by or against the decedent must be
dismissed.” Rule(a)(1) (emphasis added). The
proper filing of the suggestions of death, not the actual
death itself, triggers the 90-day clock to file a motion to
substitute. See Barlow v. Ground, 39 F.3d 231, 233
(9th Cir. 1994). If no motion is made within the 90 days of
the notice of death, Rule 25(a)(1) requires that action
must be dismissed but does not specify whether
dismissal is with or without prejudice. Zanowick v.
Baxter Healthcare Corp., 850 F.3d 1090, 1094 (9th Cir.
Plaintiff's death, Plaintiff's ADA claim is now moot.
See Kalani v. Starbuck Coffee Co., 698 Fed.Appx.
883, 885 (9th Cir. 2017) (holding that an ADA claim is moot
upon death of the plaintiff as there is “necessarily no
prospect of future injury”). However, ...