1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HARRY H. DAVALLOU, Case No.: 20-cv-00619-DMS-MDD
12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS 14 GLENMARK PHARMACEUTICALS US HEAD QUARTERS, a business of 15 unknown form, 16 Defendant. 17 18 19 Pending before the Court is Defendant Glenmark Pharmaceuticals Inc., USA’s 20 motion to dismiss Plaintiff Harry H. Davallou’s Complaint under Federal Rule of Civil 21 Procedure 41(b). Plaintiff, proceeding pro se, filed a response to Defendant’s motion. For 22 the reasons given herein, the Court grants Defendant’s motion to dismiss. 23 I. 24 BACKGROUND 25 On March 3, 2020, Plaintiff filed a Complaint based on products liability in the 26 Superior Court of California, County of San Diego. (ECF No. 1 at 11.) Plaintiff alleges 27 that in November of 2019, his previously mild Parkinson’s disease worsened and he 28 experienced “general weakness in [his] body.” (Id. at 14.) Plaintiff alleges that at the same 1 time, he received a letter from CVS Pharmacy indicating that the prescription drug he had 2 been taking—ranitidine, the generic version of the brand-name Zantac heartburn and ulcer 3 medication—was recalled. (Id. at 14, 17.) Plaintiff connected the progression of his 4 Parkinson’s disease to the recall of ranitidine. (Id. at 14.) Based on these alleged facts, 5 Plaintiff brought suit against the manufacturer of ranitidine, Glenmark Pharmaceuticals 6 Inc., seeking punitive damages of $20,000,000. (Id. at 13.) On March 31, 2020, Defendant 7 removed the case to this Court, asserting diversity jurisdiction under 28 U.S.C. § 1332(a). 8 (Id. at 1.) 9 On February 6, 2020, the United States Judicial Panel on Multidistrict Litigation 10 (“JPML”) centralized all actions involving consumers alleging physical injuries in the form 11 of liver, bladder, and other types of cancer as a result of their purchase of ranitidine 12 products. The case is captioned In Re Zantac (Ranitidine) Products Liability Litigation, 13 MDL No. 2924 (“Zantac MDL”). On April 1, 2020, Defendant filed a notice of potential 14 tag-along action to the Zantac MDL pursuant to Rule 7.1(a) of the JPML and moved to 15 stay this action, pending the JPML’s decision. (ECF No. 12-1 at 9). On April 8, 2020, the 16 JPML determined without opinion that this action was not appropriate for inclusion in the 17 Zantac MDL. (Id.) 18 Defendant then withdrew its motion to stay the action and filed a motion to dismiss 19 Plaintiff’s Complaint under Federal Rules of Civil Procedure 8 and 12(b)(6), arguing 20 Plaintiff failed to adequately allege his products liability claim. On July 27, 2020, the Court 21 granted Defendant’s motion to dismiss under Rule 12(b)(6) and granted Plaintiff thirty 22 days’ leave to file a First Amended Complaint. (ECF No. 19.) 23 The Court received a letter from Plaintiff on August 13, 2020, which was rejected 24 on August 17, 2020 for failure to comply with the Court’s Local Rules. (ECF No. 20.) 25 Plaintiff’s time to file a First Amended Complaint expired on August 26, 2020. Following 26 that date, no filings or further communication with the Court occurred until November 5, 27 2020, when Defendant filed the present motion to dismiss pursuant to Federal Rule of Civil 28 Procedure 41(b). (ECF No. 21.) 1 II. 2 DISCUSSION 3 Federal Rule of Civil Procedure 41(b) provides that, should a plaintiff fail “to 4 prosecute or to comply with these rules or any order of the court, a defendant may move 5 for dismissal of an action or of any claim against the defendant.” Courts have construed 6 Rule 41(b) to require that federal actions be prosecuted with “reasonable diligence” to 7 avoid dismissal. Anderson v. Air West, Inc., 542 F2d 522, 524 (9th Cir. 1976). In 8 determining whether to dismiss a claim for failure to prosecute, the Court must weigh the 9 following factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 10 court’s need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) 11 the availability of less drastic alternatives; and (5) the public policy favoring disposition of 12 cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2003). 13 Defendant argues all five Pagtalunan factors weigh in favor of dismissal and 14 therefore that the Court should dismiss this case with prejudice. Plaintiff filed a short 15 response in opposition, in which he references an April 2020 letter to the Court. (ECF No. 16 23; see ECF No. 11.) That letter discusses Defendant’s contact information and does not 17 address the arguments raised by Defendant in its present motion. (ECF No. 11.) Plaintiff 18 further alleges he is suffering from blood cancer caused by ranitidine tablets and submits 19 several medical records. (ECF No. 23.) In his filing, Plaintiff does not respond to the 20 substance of Defendant’s motion or offer any reason for the delay in the prosecution of this 21 case. Nor does Plaintiff request additional time to file a First Amended Complaint. 22 With respect to the first Pagtalunan factor, the deadline for Plaintiff to file an 23 amended complaint passed over four months ago, and “[t]he public’s interest in expeditious 24 resolution of litigation always favors dismissal.” Id. As to the second factor, “[t]he trial 25 judge is in the best position to determine whether the delay in a particular case interferes 26 with docket management and the public interest.” Id. The Court must be able to manage 27 its docket “without being subject to routine noncompliance of litigants.” Id. Here, 28 Plaintiff’s failure to amend has caused “the action to come to a complete halt.” Yourish v. 1 California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (affirming district court’s decision 2 to dismiss action where plaintiff failed to file amended complaint within sixty-day 3 deadline). The first two factors strongly favor dismissal. 4 Regarding the third factor, “[t]o prove prejudice, a defendant must establish that 5 plaintiff’s actions impaired defendant’s ability to proceed to trial or threatened to interfere 6 with the rightful decision of the case.” Pagtalunan, 291 F.3d at 642. Although the 7 “pendency of a lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal,” 8 id., a “plaintiff’s failure to provide an excuse for failure to amend is sufficient to establish 9 prejudice.” Curtis v. Bank of Am., N.A., No. CV 12-09158 MMM MANX, 2013 WL 10 1561475, at *2 (C.D. Cal. Apr. 12, 2013); see Malone v. U.S. Postal Serv., 833 F.2d 128, 11 131 (9th Cir. 1987) (“Whether prejudice is sufficient to support an order of dismissal is in 12 part judged with reference to the strength of the plaintiff’s excuse for the default.”). Here, 13 although Plaintiff filed a response to Defendant’s present motion, Plaintiff fails entirely to 14 explain why he did not properly file an amended complaint or seek an extension of time to 15 do so. Accordingly, this factor also favors dismissal.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HARRY H. DAVALLOU, Case No.: 20-cv-00619-DMS-MDD
12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS 14 GLENMARK PHARMACEUTICALS US HEAD QUARTERS, a business of 15 unknown form, 16 Defendant. 17 18 19 Pending before the Court is Defendant Glenmark Pharmaceuticals Inc., USA’s 20 motion to dismiss Plaintiff Harry H. Davallou’s Complaint under Federal Rule of Civil 21 Procedure 41(b). Plaintiff, proceeding pro se, filed a response to Defendant’s motion. For 22 the reasons given herein, the Court grants Defendant’s motion to dismiss. 23 I. 24 BACKGROUND 25 On March 3, 2020, Plaintiff filed a Complaint based on products liability in the 26 Superior Court of California, County of San Diego. (ECF No. 1 at 11.) Plaintiff alleges 27 that in November of 2019, his previously mild Parkinson’s disease worsened and he 28 experienced “general weakness in [his] body.” (Id. at 14.) Plaintiff alleges that at the same 1 time, he received a letter from CVS Pharmacy indicating that the prescription drug he had 2 been taking—ranitidine, the generic version of the brand-name Zantac heartburn and ulcer 3 medication—was recalled. (Id. at 14, 17.) Plaintiff connected the progression of his 4 Parkinson’s disease to the recall of ranitidine. (Id. at 14.) Based on these alleged facts, 5 Plaintiff brought suit against the manufacturer of ranitidine, Glenmark Pharmaceuticals 6 Inc., seeking punitive damages of $20,000,000. (Id. at 13.) On March 31, 2020, Defendant 7 removed the case to this Court, asserting diversity jurisdiction under 28 U.S.C. § 1332(a). 8 (Id. at 1.) 9 On February 6, 2020, the United States Judicial Panel on Multidistrict Litigation 10 (“JPML”) centralized all actions involving consumers alleging physical injuries in the form 11 of liver, bladder, and other types of cancer as a result of their purchase of ranitidine 12 products. The case is captioned In Re Zantac (Ranitidine) Products Liability Litigation, 13 MDL No. 2924 (“Zantac MDL”). On April 1, 2020, Defendant filed a notice of potential 14 tag-along action to the Zantac MDL pursuant to Rule 7.1(a) of the JPML and moved to 15 stay this action, pending the JPML’s decision. (ECF No. 12-1 at 9). On April 8, 2020, the 16 JPML determined without opinion that this action was not appropriate for inclusion in the 17 Zantac MDL. (Id.) 18 Defendant then withdrew its motion to stay the action and filed a motion to dismiss 19 Plaintiff’s Complaint under Federal Rules of Civil Procedure 8 and 12(b)(6), arguing 20 Plaintiff failed to adequately allege his products liability claim. On July 27, 2020, the Court 21 granted Defendant’s motion to dismiss under Rule 12(b)(6) and granted Plaintiff thirty 22 days’ leave to file a First Amended Complaint. (ECF No. 19.) 23 The Court received a letter from Plaintiff on August 13, 2020, which was rejected 24 on August 17, 2020 for failure to comply with the Court’s Local Rules. (ECF No. 20.) 25 Plaintiff’s time to file a First Amended Complaint expired on August 26, 2020. Following 26 that date, no filings or further communication with the Court occurred until November 5, 27 2020, when Defendant filed the present motion to dismiss pursuant to Federal Rule of Civil 28 Procedure 41(b). (ECF No. 21.) 1 II. 2 DISCUSSION 3 Federal Rule of Civil Procedure 41(b) provides that, should a plaintiff fail “to 4 prosecute or to comply with these rules or any order of the court, a defendant may move 5 for dismissal of an action or of any claim against the defendant.” Courts have construed 6 Rule 41(b) to require that federal actions be prosecuted with “reasonable diligence” to 7 avoid dismissal. Anderson v. Air West, Inc., 542 F2d 522, 524 (9th Cir. 1976). In 8 determining whether to dismiss a claim for failure to prosecute, the Court must weigh the 9 following factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 10 court’s need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) 11 the availability of less drastic alternatives; and (5) the public policy favoring disposition of 12 cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2003). 13 Defendant argues all five Pagtalunan factors weigh in favor of dismissal and 14 therefore that the Court should dismiss this case with prejudice. Plaintiff filed a short 15 response in opposition, in which he references an April 2020 letter to the Court. (ECF No. 16 23; see ECF No. 11.) That letter discusses Defendant’s contact information and does not 17 address the arguments raised by Defendant in its present motion. (ECF No. 11.) Plaintiff 18 further alleges he is suffering from blood cancer caused by ranitidine tablets and submits 19 several medical records. (ECF No. 23.) In his filing, Plaintiff does not respond to the 20 substance of Defendant’s motion or offer any reason for the delay in the prosecution of this 21 case. Nor does Plaintiff request additional time to file a First Amended Complaint. 22 With respect to the first Pagtalunan factor, the deadline for Plaintiff to file an 23 amended complaint passed over four months ago, and “[t]he public’s interest in expeditious 24 resolution of litigation always favors dismissal.” Id. As to the second factor, “[t]he trial 25 judge is in the best position to determine whether the delay in a particular case interferes 26 with docket management and the public interest.” Id. The Court must be able to manage 27 its docket “without being subject to routine noncompliance of litigants.” Id. Here, 28 Plaintiff’s failure to amend has caused “the action to come to a complete halt.” Yourish v. 1 California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (affirming district court’s decision 2 to dismiss action where plaintiff failed to file amended complaint within sixty-day 3 deadline). The first two factors strongly favor dismissal. 4 Regarding the third factor, “[t]o prove prejudice, a defendant must establish that 5 plaintiff’s actions impaired defendant’s ability to proceed to trial or threatened to interfere 6 with the rightful decision of the case.” Pagtalunan, 291 F.3d at 642. Although the 7 “pendency of a lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal,” 8 id., a “plaintiff’s failure to provide an excuse for failure to amend is sufficient to establish 9 prejudice.” Curtis v. Bank of Am., N.A., No. CV 12-09158 MMM MANX, 2013 WL 10 1561475, at *2 (C.D. Cal. Apr. 12, 2013); see Malone v. U.S. Postal Serv., 833 F.2d 128, 11 131 (9th Cir. 1987) (“Whether prejudice is sufficient to support an order of dismissal is in 12 part judged with reference to the strength of the plaintiff’s excuse for the default.”). Here, 13 although Plaintiff filed a response to Defendant’s present motion, Plaintiff fails entirely to 14 explain why he did not properly file an amended complaint or seek an extension of time to 15 do so. Accordingly, this factor also favors dismissal. See Pagtalunan, 291 F.3d at 643 16 (finding this factor weighed in favor of dismissal where plaintiff offered “no clear 17 explanations” and noting “[u]nnecessary delay inherently increases the risk that witnesses’ 18 memories will fade and evidence will become stale.”) 19 As to the fourth factor, the Court must consider the availability and adequacy of less 20 drastic alternatives to dismissal, such as warnings. See Malone, 833 F.2d at 131–32 & n.1. 21 The Court’s initial grant of leave to amend cannot constitute a “less drastic alternative” to 22 dismissal because Plaintiff had not yet disobeyed any court order when leave was granted. 23 See Yourish, 191 F.3d at 992. Nevertheless, Plaintiff’s failure to file an amended complaint 24 in compliance with the order and this Court’s rules, in combination with Plaintiff’s failure 25 to explain the delay or request additional time to file in his response to the present motion, 26 “indicates that there are no less drastic alternatives that are realistically available.” Curtis, 27 2013 WL 1561475, at *2. The Court thus finds this factor to be neutral. 28 1 Lastly, the fifth factor typically weighs against dismissal because public policy 2 ||favors disposition of cases on the merits. Pagtalunan, 291 F.3d at 643. However, “a case 3 ||that is stalled or unreasonably delayed by a party’s failure to comply with 4 deadlines ... cannot move forward toward resolution on the merits,” and thus this factor 5 || “lends little support to a party whose responsibility it is to move a case toward disposition 6 the merits but whose conduct impedes progress in that direction.” In re 7 || Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 2006) 8 || (internal quotation marks omitted) (citing cases). This factor is therefore neutral. 9 On balance, the cumulative weight of the Pagtalunan factors favors 10 || dismissal. See Pagtalunan, 291 F.3d at 643 (affirming dismissal where district court found 11 |/three of the five factors weighed in favor of dismissal). Although Plaintiff is proceeding 12 || pro se, “[f]ederal courts, including the Ninth Circuit, recognize the important goals served 13 || by lenient treatment of pro se litigants must necessarily yield to prejudice suffered by the 14 || courts and other parties.” VonGrabe v. Sprint PCS, 312 F. Supp. 2d 1313, 1319 (S.D. Cal. 15 || 2004) (finding complaint by pro se plaintiff subject to dismissal under Rule 41(b)) (citing 16 || Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992)). Accordingly, the Court dismisses this 17 || case with prejudice. 18 II. 19 CONCLUSION AND ORDER 20 For the foregoing reasons, Defendant’s motion is granted. This case is hereby 21 || dismissed with prejudice. 22 IT IS SO ORDERED. 23 Dated: January 19, 2021 gf in yn. Hon. Dana M. Sabraw 25 United States District Judge 26 27 28