Gutierrrez v. Akimoto
Opinion
; i ,.- r
IN THE SUPERIOR COURT OF GUAM 2
3 CARL T.C. GUTIERREZ, ) Civil Case no. CV 17§6-1;Q :J \J f ( T 4 ) Plaintiff, ) 5 ) vs. ) 6 DECISION AND ORDER VINCENT AKIMOTO, M.D., DOUGLAS B. ) re: Motion to Dismiss & Request for 7 MOYLAN and JOHN DOES 1-100 ) Reimbursement of Attorney's Fees & DEFENDANTS, ) Court Costs 8 ) ) 9 Defendants. ) 10 ----------------------------) 11 INTRODUCTION 12 This matter came before the Honorable Judge Michael J. Bordallo on December 20 I3
14 2011. The Plaintiff was represented by attorney Delia Lujan Wolff. Defendants were represente
15 by attorney Curtis C. Vande Veld. After considering the matters presented, the court now issue
16 the following decision and order granting Defendant's motion to dismiss. 17 BACKGROUND 18 The instant matter arises out of a complaint filed by the Plaintiff on October 20, 2010. I 19 the complaint Plaintiff asserts claims for malicious prosecution, abuse of process, intention 20 and/or negligent infliction of emotional distress, and punitive damages. The complaint allege 21
22 that the Defendants' actions in Civil Case No. CVI0II-02 form the basis for the abov
23 mentioned claims. Before the court now is Defendants' motion to dismiss and request fo 24 reimbursement of attorney's fees and court costs. More specifically, Defendants move to dismis 25 the instant action for Plaintiff's failure to timely serve the complaint and failure to prosecute. 26 DISCUSSION 27 Failure to Timely Serve the Complaint 28
G.R.C.P. Rule 4(m) requires dismissal of an action if service of the summons an Page 10f4 complaint is not made upon the defendant within 180 days after the filing of the complaint. Th 2 court can extend the time for service if the Plaintiff shows good case for the failure. Rule 4(m 3 states, 4 (m) Time Limit for Service. If service of the summons and 5 complaint is not made upon a defendant within 180 days after the 6 filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action 7 without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows 8 good cause for the failure, the court shall extend the time for 9 service for an appropriate period.
10 G.R.C.P. Rule 4(m). Defendants argue the instant case should be dismissed because the Plaintif 11 failed to timely serve process under Rule 4(m). They also assert that Plaintiff has failed to sho 12 good cause for his failure to timely serve them with the summons and complaint. 13 th In the instant case, the Defendants were not served until August 10 and 11th of 2011 14
15 which is almost 10 months after the complaint was filed. Thus, the court finds that Plaintiff faile
16 to serve the Defendants within the 180 days as required by Rule 4(m). The court also finds tha 17 Plaintiff has not shown good cause for this failure. Plaintiff asserts that good cause existed due t 18 the continued activity in CVI0II-02. The court finds this reason to be without merit becaus 19
20 service in this case does not hinge upon the activity in another case. For these reasons the co
21 finds that Plaintiff failed to timely serve the complaint upon Defendants in accordance wit 22 G.R.C.P. Rule 4(m). 23 Failure to Prosecute 24 When prosecuting an action, the rule is that a plaintiff is required to act with reasonabl 25
26 diligence. Moore v. Telfon Communications Corp., 589 F.2d 959, 967 (9th Cir. 1978) (citin
27 Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976)). According to the G.R.C.P. Rul 28 41 (b), when a plaintiff fails to "prosecute or to comply with these rules or any order of court,
Page 2 of4 defendant may move for dismissal of an action or of any claim against the plaintiff." Santos v. 2 Carney, 1997 Guam 4 ~ 5. 3 Since the G.R.C.P. does not define when a "failure to prosecute" is appropriate unde 4 Rule 41(b), this jurisdiction looks to the Ninth Circuit's five-factor test to make such 5
6 determination: (1) the public's interest in expeditious resolution of litigation; (2) the court'
7 need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public polic 8 favoring the disposition of cases on their merits; and (5) the availability of less drasti 9 sanctions." Santos, 1997 Guam 4 ~ 5 (quoting In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994)). 10 The first two factors, the public's interest in expeditious resolution of litigation an 11
12 docket management, are ordinarily considered together. !d. The record reflects that over a ye
13 has passed with nothing having' been done by the Plaintiff to move this case along. Plainti 14 claims that on December 6,2011, he sent initial disclosures and a draft for a proposed schedulin 15 order and discovery plan. The court however, notes this occurred on the same day that th 16 Defendants filed the instant motion to dismiss and approximately 14 months after the complain 17
18 was filed. Plaintiff's case has not advanced much towards resolution. With that said, the first tw
19 factors weigh in favor of dismissal. 20 Next, the court considers the third factor. The burden is on the plaintiff to show that th 21 delay is reasonable, and that the defendant is not prejudiced by the delay. Santos, 1997 Guam 4 22 5. If there is a reasonable excuse for the inaction, which there is not in this case, then the burde 23 shifts to the defendant who must then demonstrate prejudice. Id. Late answers may be excuse 24
25 where there is no showing of prejudice to the defendant. Draper v. Coombs, 792 F.2d 915,924
26 25 (9th Cir. 1987). In the present case, Plaintiff has failed to meet its burden; therefore, the cou 27 presumes the Defendant was prejudiced. Presumed prejudice is sufficient to support a dismissa 28 under GRCP 41(b). Santos at ~ 8. The court finds that the third factor also favors dismissal.
Page 3 of4 The fourth factor stresses the need for courts to resolve cases on the merits. Santos, 199 2 Guam 4 ~ 9. However, the public policy of determining cases on their merits should not be use 3 defensively as a shield by a passive plaintiff who has failed in his obligation to prosecute th 4 defendants with the vigor expected of a plaintiff. Id. The court finds that this factor woul 5
6 ordinarily weigh against dismissal because it is important to dispose of the merits of Plaintiff'
7 claim. However, the court is in a unique position of foresight because, even now, Plaintiff h 8 continued to allow its case to remain at a standstill. 9 After applying the Rule 41 (b) test, and weighing such factors as the courts hav 10 interpreted them, the motion to dismiss is granted. Plaintiff has failed to meet its burden as t 11
12 establishing the reasonableness for the delay, and the Defendants have sufficiently showe
13 prejudice arising from such delay. 14 CONCLUSION 15 Based on the foregoing, the court finds that the Plaintiff failed to 16 complaint upon Defendants in accordance with G.R.C.P. Rule 4(m). The court also finds that th 17 plaintiff has not acted with reasonable diligence in prosecuting his action which violate 18
19 G.R.C.P. Rule 41(b). Therefore, the court GRANTS Defendants' motion to dismiss. The co
20 DENIES their request for reimbursement of attorney's fees and court costs.
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