Hernandez v. PGA Holdings LLC

• Court: District Court, D. Arizona
• Decided: May 28, 2020
• Docket: 2:19-cv-04733
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Antonio Hernandez, No. CV-19-04733-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 PGA Holdings LLC, et al.,

13 Defendants. 14 15 On July 16, 2019, Antonio Hernandez filed a collective action complaint against 16 Defendants for failure to pay overtime in violation of the Fair Labor Standards Act, 29 17 U.S.C. § 201, et seq. (“FLSA”). (Doc. 1.) The parties’ joint case management report, filed 18 on September 20, 2019, stated that “Zachariah Owen is currently the only Opt-In Plaintiff.” 19 (Doc. 28 at 2.) The Court has no notice of any other opt-in plaintiffs. 20 A scheduling order issued on September 24, 2019 (Doc. 30), and the parties 21 exchanged Mandatory Initial Discovery Program responses within the next few days 22 (Docs. 31, 32). 23 The docket reflects no activity between September 2019 and May 13, 2020, when 24 Opt-In Plaintiff Zachariah Owen and Defendants filed a stipulation to dismiss Mr. Owen 25 with prejudice (Doc. 33), and Plaintiff Antonio Hernandez’s counsel, Clifford P. Bendau, 26 II and Christopher J. Bendau of Bendau & Bendau PLLC (“Plaintiff’s Counsel”) filed a 27 motion to withdraw as counsel of record without client consent (Doc. 34). Plaintiff’s 28 counsel avers that “withdrawal is necessary in light of Plaintiff’s unwillingness and/or 1 inability to effectively communicate with his own counsel in connection with this action,” 2 specifically noting “Plaintiff’s failure to cooperate with respect to providing responses to 3 counsel’s requests for information and documentation pertaining to his case, responses to 4 settlement discussions, and general failure to communicate with his counsel, including but 5 not limited to, responding to emails and telephone calls timely or otherwise.” (Doc. 34 at 6 2-3.) 7 The stipulation to dismiss Opt-In Plaintiff Owen will be granted. As such, 8 Hernandez will be the sole plaintiff in this action, and he is apparently not participating. 9 Without Hernandez’s participation, this action will not be permitted to linger on the 10 docket.1 “It is within the inherent power of the court to sua sponte dismiss a case for lack 11 of prosecution.” Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). “When considering 12 whether to dismiss a case for lack of prosecution, the district court must weigh the court’s 13 need to manage its docket, the public interest in expeditious resolution of litigation, and 14 the risk of prejudice to the defendants against the policy favoring disposition of cases on 15 their merits, and the availability of less drastic sanctions.” Id. “Only ‘unreasonable’ delay 16 will support a dismissal for lack of prosecution.” Id. The Ninth Circuit has affirmed 17 dismissal without prejudice for a delay as short as four weeks, noting that “[a] relatively 18 brief period of delay is sufficient to justify the district court’s sending a litigant to the back 19 of the line.” Id. at 497. 20 The Court will order Plaintiff to show cause why this case should not be dismissed 21 without prejudice for failure to prosecute. Plaintiff must file a memorandum, not to exceed 22 five pages, by June 17, 2020. The Court is interested in knowing (1) the reason why 23 Plaintiff has failed to communicate with his counsel, (2) the prejudice, if any, to Plaintiff 24 if this case were dismissed without prejudice—particularly whether any statute of 25 limitations would bar the case from being filed anew, and (3) Plaintiff’s suggestions as to 26 how the case could proceed expeditiously from this point forward, if the Court were to 27 1 Dismissal of this action would affect only Hernandez, as other “putative plaintiffs 28 remain free to vindicate their rights in their own suits.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 77 (2013). 1 determine that dismissal is not an appropriate sanction at this time. 2 As for Plaintiff’s Counsel’s motion to withdraw as counsel, Ninth Circuit law 3 suggests a “justifiable cause” standard applies when, as here, the client does not 4 affirmatively consent to the withdrawal request. Lovvorn v. Johnston, 118 F.2d 704, 706 5 (9th Cir. 1941) (“An attorney may not, in the absence of the client’s consent, withdraw 6 from a case without justifiable cause; and then only after proper notice to his client, and on 7 leave of the court.”). “Justifiable cause” is not a terribly demanding standard, and the 8 professional considerations listed in ER 1.16 will often satisfy it, so long as other factors 9 don’t outweigh those considerations. Gagan v. Monroe, 2013 WL 1339935, *4 (D. Ariz. 10 2013) (“Factors that a district court should consider when ruling upon a motion to withdraw 11 as counsel include: (1) the reasons why withdrawal is sought; (2) the prejudice withdrawal 12 may cause to other litigants; (3) the harm withdrawal might cause to the administration of 13 justice; and (4) the degree to which withdrawal will delay the resolution of the case.”). 14 Plaintiff has failed to respond to his counsel’s attempts to communicate, and he has 15 failed to respond to their motion to withdraw as counsel. Any prejudice to him is of his 16 own making. Furthermore, withdrawal will not harm the administration of justice or 17 greatly delay resolution of this case. If Plaintiff fails to respond to the order to show cause, 18 this action will be dismissed, and if Plaintiff responds with satisfactory reasons for allowing 19 the case to proceed, a very short timeframe will be established in which Plaintiff will be 20 required to engage new counsel or proceed pro se individually.2 Justifiable cause supports 21 Plaintiff’s Counsel’s withdrawal request, which will be granted. 22 Accordingly, 23 IT IS ORDERED that stipulation to dismiss Opt-In Plaintiff Owen (Doc. 33) is 24 granted. 25 IT IS FURTHER ORDERED that Plaintiff’s Counsel’s motion to withdraw as

26 2 Plaintiff may not proceed pro se on behalf of others similarly situated. Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (discussing “the general rule 27 prohibiting pro se plaintiffs from pursuing claims on behalf of others in a representative capacity”); Koch v. CHS Inc., 2012 WL 6093891, *2 (D. Idaho 2012) 28 (general rule “holds true for pro se plaintiffs seeking to bring collective action suits under the F LSA”). 1 || counsel of record (Doc. 34) is granted. Clifford P. Bendau, II and Christopher J. Bendau of Bendau & Bendau PLLC are withdrawn as counsel of record for Plaintiff. 3 IT IS FURTHER ORDERED that the Clerk of Court shall update □□□□□□□□□□□ 4|| contact information as follows: 5 Antonio Hernandez 6 6112 N. 67th Ave., Apt. 217 7 Glendale, AZ 85391 8 (623) 512-8404 9 IT IS FURTHER ORDERED that Plaintiff shall file a memorandum by June 17, 10 || 2020, not to exceed five pages, showing cause why this case should not be dismissed for 11 || failure to prosecute. 12 IT IS FURTHER ORDERED that if Plaintiff fails to file a memorandum showing 13 || cause why this case should not be dismissed by June 17, 2020, the Clerk of Court shall dismiss this action without prejudice. 15 Dated this 28th day of May, 2020. 16 17 im a 18 } t □□□ Dominic W, Lanza 19 United States District Judge 20 21 22 23 24 25 26 27 28

-4-