United States District Court, N.D. California, San Jose Division
ORDER DISMISSING SECOND AMENDED COMPLAINT AS TO ALL
REMAINING DEFENDANTS; AND DISMISSING ACTION WITHOUT
lab Son Freeman United States District Judge.
October 17, 2019, the Court granted the Teva Defendants'
motion to dismiss the second amended complaint
(“SAC”) for lack of personal jurisdiction,
without leave to amend. See Order, ECF 81.
Court also ordered Plaintiff to show cause, in writing and on
or before October 31, 2019, why the second amended complaint
should not be dismissed with respect to the three remaining
defendants, FEI Women's Health LLC, Ortho-McNeil
Pharmaceutical, LLC, and Duramed Pharmaceuticals.
See Order, ECF 81. The Court stated its view that
these defendants are subject to dismissal on the bases that
they were added in violation of the Court's express order
and they have not been timely served with process as required
under Federal Rule of Civil Procedure 4(m). See id.
has not responded to the Order to Show Cause and the deadline
for response has elapsed. The Court finds that dismissal of
the second amended complaint with respect to the remaining
Defendants is warranted under Federal Rules of Civil
Procedure 41(b) and 4(m).
Rule of Civil Procedure 41(b) allows for involuntary
dismissal of an action “[i]f the plaintiff fails to
prosecute or to comply with these rules or a court
order.” Rule 41(b) permits a court to dismiss an action
sua sponte. See Link v. Wabash R.R. Co.,
370 U.S. 626, 630-31 (1962). Before imposing dismissal as a
sanction, “the district court must consider five
factors: (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. Calif. Amplifier,
191 F.3d 983, 990 (9th Cir. 1999) (internal quotation marks
and citation omitted).
has failed to comply with this Court's orders or with the
service requirements of Rule 4(m). In its Order Granting
Motion to Substitute, the Court granted Plaintiff's
request for leave to amend to add “Paragard” as a
defendant. See Order Granting Motion to Substitute,
ECF 70. The order prohibited Plaintiff from adding any other
new parties or claims without express leave of the Court.
See Id. Plaintiff nonetheless filed her SAC adding
Defendants FEI Women's Health LLC, Ortho-McNeil
Pharmaceutical, LLC, and Duramed Pharmaceuticals, in direct
contravention of the Court's explicit order. See
SAC, ECF 71. Plaintiff then failed to effect service of
process on these defendants within 90 days of filing her SAC,
as required under Rule 4(m). See Fed. R. Civ. P.
4(m) (requiring service of process within 90 days after
complaint is filed). Plaintiff also failed to respond to the
Court's Order to Show Cause why the SAC should not be
dismissed as to Defendants FEI Women's Health LLC,
Ortho-McNeil Pharmaceutical, LLC, and Duramed
failure to comply with the Court's orders and with Rule
4(m) can serve as grounds for dismissal if the factors set
forth above favor dismissal. See Yourish, 191 F.3d
at 986. Here, four of the five factors strongly favor
dismissal. Dismissal serves the public's interest in
expeditious resolution of litigation (factor 1), because
Plaintiff's failure to serve the SAC on the remaining
defendants and failure to respond to the Court's Order to
Show Cause effectively have stalled the case. Plaintiff's
conduct has interfered with the Court's need to manage
its docket (factor 2), because Plaintiff has ignored the
Court's orders and the requirements of the Federal Rules
of Civil Procedure. Failure to dismiss this action would
prejudice the remaining defendants (factor 3), who are
entitled to notice and resolution of Plaintiff s claims. The
public policy favoring disposition of cases on their merits
(factor 4) does not favor dismissal. However, the Court sees
little point in imposing less severe sanctions (factor 5),
because Plaintiff has shown no interest in complying with
this Court's orders or with Rule 4(m). Accordingly, the
Court concludes that the SAC is subject to dismiss as to all
remaining defendants under Rule 41(b).
addition, Rule 4(m) provides an independent basis for
dismissal. The rule provides that “[i]f a defendant is
not served within 90 days after the complaint is filed, the
court - on motion or on its own after notice to the plaintiff
- must dismiss the action without prejudice against that
defendant or order that service be made within a specified
time.” Fed.R.Civ.P. 4(m). The Court's Order to Show
Cause gave Plaintiff notice that the Court was considering
dismissal of the SAC as to all remaining defendants for
failure to effect service of process within 90 days.
See Order, ECF 81. Plaintiff failed to ask for
additional time or otherwise respond.
these reasons, the SAC is DISMISSED as to Defendants FEI
Women's Health LLC, Ortho-McNeil Pharmaceutical, LLC, and
having been dismissed as to the Teva Defendants for lack of
personal jurisdiction, and as to the remaining Defendants for
failure to prosecute and failure to effect service of
process, the action is hereby DISMISSED WITHOUT PREJUDICE as
to all Defendants.
Clerk shall close the file.