United States District Court, E.D. California
MEMORANDUM AND ORDER
MORRISON C. ENGLAND, JR., UNITED STATES DISTRICT JUDGE
action, Plaintiff Matthew Stonecypher
(“Plaintiff”) seeks damages from his former
employer, Defendant IASCO Flight Training, Inc.
(“Defendant” or “IASCO”), for alleged
violations of various wage and hour laws, wrongful
termination, and retaliation. Presently before the Court are
two motions: Defendant's Motion to Dismiss (ECF No. 22-1)
pursuant to Federal Rule of Civil Procedure 41(b) for failure
to prosecute, and Plaintiff's Motion to Amend the
Pretrial Scheduling Order (ECF No. 24), which would allow
discovery and, accordingly, permit the adjudication of this
case to proceed. For the reasons set forth below,
Plaintiff's Motion to Amend the Pretrial Scheduling Order
is GRANTED, and Defendant's Motion to Dismiss is
was employed by Defendant IASCO, a flight training school in
Redding, California, as a Certified Flight Instructor for
about six months before he was terminated on or about August
22, 2017. Pl.'s Opp'n to Def.'s Mot. to Dismiss,
ECF No. 27 at 1:6-7. While Plaintiff was employed by
Defendant, he witnessed several alleged violations of the
Federal Aviation Administration regulations and the
California Labor Code, including, but not limited to,
improper classification as an exempt employee. Id.
at 1:7-17. As a result, Plaintiff filed the instant lawsuit
on November 15, 2017. Id. at 2:7-9. On that same
day, this Court issued an Initial Pretrial Scheduling Order
(“IPTSO”) which stated that discovery was to be
completed within 365 days from the date of filing. Def.'s
Mem. Supp. Mot. to Dismiss, ECF No. 22-1 at 3:26-4:14. In
addition to commencing the present action, Plaintiff also
filed an administrative complaint just under a month later,
on November 14, 2017, with the California Occupational Safety
and Health Administration. That complaint was subsequently
referred to the U.S. Department of Labor (“DOL”)
for federal investigation. Pl.'s Mot. to Amend, ECF No.
24 at 7:22-24.
January 5, 2018, Defendant filed a Motion to Dismiss the
Complaint for lack of subject matter jurisdiction and Motion
to Strike (the “first Motion to Dismiss”).
Id. 8:11-12. Shortly thereafter, on January 11,
2018, Defendant's counsel informed Plaintiff that
Defendant did not want to expend unnecessary resources in
discovery, but instead wanted to explore alternative dispute
resolution (“ADR”). Id. at 8:18-20. The
parties agreed to ADR through the DOL and subsequently agreed
to participate in mediation in mid-June 2018. Id. at
8:21-28. On June 8, 2018, Plaintiff's counsel was
informed that Joseph Breen, Esq. (“Breen”) would
be substituting in as new counsel for Defendant, and that
mediation would be postponed for Breen to get up to speed
with the case. Id. at 9:3-12.
September 17, 2018, this Court issued an order granting
Defendant's Motion to Dismiss with leave to amend.
Id. at 9:16-18. On October 5, 2018, Plaintiff filed
his First Amended Complaint. Id. at 9:18-19.
Additionally, on or about October 10, 2018, Plaintiff
requested that the DOL resume its investigation. Id.
at 9:19-21. Shortly thereafter, and once Plaintiff was
informed a new federal investigator was assigned to the
administrative complaint, Breen informed Plaintiff that
Defendant did not wish to expend any resources in discovery
and instead wanted to resume settlement negotiations.
Id. at 9:21-26. Beginning in approximately November
of 2018, the parties began to exchange settlement demands for
a global settlement. Id. at 10:7-10. On or about
December 19, 2018, Plaintiff learned that yet another new
federal investigator would take over the investigation.
Id. at 10:10-13.
early January 2019, Breen informed Plaintiff that Defendant
wanted to explore private mediation. The parties then began
to meet and confer regarding proposed mediators and suspended
the federal investigation to allow the parties to conserve
resources toward a fruitful mediation. Id. at
10:14-18. Ultimately, the parties agreed to mediator Michelle
Reinglass and scheduled mediation to occur on April 25, 2019.
Id. at 10:18-20. On March 11, 2019, Defendant
reneged on the parties' agreement to Michelle Reinglass,
and the federal investigator informed the parties that in the
interest of justice, he would be resuming the federal
investigation. Id. at 10:25-27.
subsequently provided a list of alternative mediators, but as
of April 2019, the parties were unable to reach any
agreement. Id. at 10:24-28. On April 9, 2019, in a
telephonic discovery conference, Plaintiff explained to
Defendant that the parties needed to jointly stipulate to
extend discovery deadlines that had passed. Id. at
11:4-6. Defendant then requested that Plaintiff prepare the
initial draft for a joint Rule 26 report. Id. at
11:7-8. On April 15, 2019, Plaintiff emailed both of the
documents to Defendant. Id. at 11:8-10. Defendant
nonetheless rejected Plaintiff's request to engage in a
joint discovery conference, and on May 3, 2019 reiterated its
prior proposal the parties seek informal resolution in lieu
of expending costs in discovery and litigation. Id.
about May 16, 2019, the parties agreed to explore the
Court's Voluntary Dispute Resolution (“VDR”)
program but were apparently unable to coordinate a time to
further discuss that process. Id. at 11:16-18. Then,
approximately two months later, on August 15, 2019, Defendant
filed the Motion to Dismiss for failure to prosecute
currently before this Court. Pl.'s Opp'n to
Def.'s Mot. To Dismiss, ECF No. 27 at 6:19-21.
Significantly, on September 5, 2019, Plaintiff learned that
the DOL adopted the federal investigator's recommendation
of a merit finding against Defendant. Id. at
Dismissal under Federal Rule of Civil Procedure
Federal Rule of Civil Procedure 41(b), “[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.” Rule 41(b) requires that
plaintiffs prosecute their claims with “reasonable
diligence” to avoid dismissal. Anderson v. Air West,
Inc., 542 F.2d 522, 524 (9th Cir. 1976). “A Rule
41(b) dismissal ‘must be supported by a showing of
unreasonable delay.'” Omstead v. Dell,
Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting
Henderson v Duncan, 779 F.2d 1421, 1423 (9th Cir.
1986). “The pertinent question . . . is not simply
whether there has been any, but rather whether there has been
sufficient delay or prejudice to justify a dismissal of the
plaintiff's case.” Id. Moreover, to the
extent that delay has been occasioned by “what appears
to be a good faith error rather than any willful failure to
prosecute, ” dismissal for delay in prosecution is not
indicated. Cox v. Cnty. of Yuba, No.
2:09-cv-01894-MCE-JFM, 2011 WL 590733, *1, *5 (E.D. Cal. Feb.
41(b) has been deemed “so harsh a penalty it should be
imposed as a sanction only in extreme circumstances.”
Lal v. California, 610 F.3d 518, 525 (9th Cir. 2010)
(quoting Dahl v. City of Huntington Beach, 84 F.3d
363, 366 (9th Cir. 1996)). In determining whether to dismiss
a claim for failure to prosecute in particular, a court
should consider: “(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
defendants/respondents; (4) the availability of less drastic
alternatives; and (5) the public policy favoring disposition
of cases on their merits.” Pagtalunan v.
Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing
Ferdik v. Benzelet, 963 F.3d 1258, 1260-61 (9th Cir.
1992)). The burden of establishing the propriety of dismissal
upon consideration of these factors rests with the defendant.
Johnson v. Pluralsight, LLC, No.
2-16-CV-01148-MCE-CKD, 2019 WL 2184954, *1, *3 (E.D. Cal. May
21, 2019). Whether to dismiss an action under Rule 41(b) is a
matter soundly within the Court's discretion. See Ash
v. Cvetkov, 739 F.2d 493, 495 (9th Cir. 1984).
Amendment to ...