Lee v. Paulino

Opinion

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4 IN THE SUPERIOR COURT OF GUAM 5

6 YOUNG LEE AND TOM YOUNG INC., CIV1L CASE NO. CV0299-19 7 Third-Party Plaintiffs, 8 vs. DECISION AND ORDER 9 GRANTING MOTION TO DISMISS 10 VICTOR PAULINO, CASS1DY'S FOR FAILURE TO PROSECUTE; ASSOCIATED INSURERS INC. and JUDGMENT OF DISMISSAL 11 DOES I to V WITH PREJUDICE 12 Third-Party Defendants. 1 13

14 1. INTRODUCTION 15

16 This matter came before the Honorable Judge Maria T. Cenzon upon submission of

17 ' Victor Pauli ro and Cassidy's Associated Insurer's Inc.'s (the Third-Party Defendants and 18 collectively "Cassidy's") Motion to dismiss for failure to prosecute. Attorney Randall Cunliffe 19 represents Defendants/Third-Party Plaintiffs Young Lee and Tom Young, Inc. (hereinafter 20

21 "Young").2 The Court took the matter under advisement pursuant to Supreme Court of Guam

22 Administrative Rule 06-001 and CVR 7.1(e)(6)(A) of the Local Rules of the Superior Court of 23

24 1 The Third-Party Plaintiffs were originally also Defendants in the action as brought forth by a Mr. Hailler Hallers. 25 See Con pl. for Monetary Damages (Mar. 28, 2019). Mr. Hallers' claim has since been dismissed with prejudice and only the Third-Party Plaintiffs and the Third-Party Defendants remain. See Stipulation for Dismissal & Order (Dec. 26 22, 2020). This caption reflects the remaining parties to the litigation. 2 While Defendants have been represented by the Law Office of Cunliffe & Cook since June 22, 2020, See 27 Substitution of Counsel (June 22, 2020), their counsel recently moved to withdraw as counsel. See Motion to Withdraw as Counsel (Aug. 15, 2022). This Court shall address Mr. Cunliffe's motion separately. 28 Decision and Order Granting Motion to Dismiss for Failure to Prosecute CV0299-19, Hollers v. Young et al. Page 1 of 8 Guam following submission (or lack thereof) of the parties' respective briefs, without oral 1

2 argument. Having duly considered the parties' briefs and the applicable law, the Court now

3 issues the following Decision and Order and GRANTS Cassidy's Motion. 4 11. BACKGROUND 5 This matter originally arose out of an incident that occurred at the workplace of Hailler 6

7 Hallers circa 2018. See Comal. for Monetary Damages. Young managed and operated the

8 workplace. See Id. at 1-2. Mr. Hallers claimed to have suffered personal injuries as a result of

9 Young's negligence and sought damages for the alleged injuries. See Id. Young apparently 10 assumed the costs of Mr. Halters' medical treatment but denied the accusations and filed a third 11 party complaint against Cassidy's, alleging that it was the latter which was liable for any costs 12

13 and/or damages. See Answer, Counterclaim, and Third Party Practice (Apr. 18, 2019). Halters

14 and Young subsequently agreed to dismiss Hollers' claims with prejudice. See Stipulation for

15 Dismissal & Order (Dec. 22, 2020). Consequently, only Young's claims against Cassidy's 16 survived, however, the action laid dormant until Cassidy's filed its present Motion to dismiss 17

18 for failure to prosecute. See Motion to Dismiss (May 13, 2022). During this hiatus, Young

19 allegedly failed to fully respond to discovery requests and even told Cassidy's they would likely

20 dismiss the case. Cassidy's Br. at 2 ("Third Party Defendants responded to the Interrogatories 21 on November 25, 2019 but failed to respond to the Requests for Documents."), Cassidy's Br. at 22 3 ("Eventually, [Young's counsel] infonned the undersigned that it would likely dismiss the 23

24 case against Cassidy's.").

25 Pursuant to CVR 7.l(b) and (d)(l)-(3) and the briefing schedule, Young's opposition

be brief to the present Motion was due on June 10, 2022, but Young failed to file any responsive 27 brief within the time ordered in the briefing scheduled. Young's counsel subsequently filed a 28 Decision and Order Granting Motion to Dismiss for Failure to Prosecute CV0299-19, Hollers v. Young et al. Page 2 of f separate motion seeking to be relieved from its representation of the Defendant/Third Party 1

2 Plaintiff "due to [Young]'s failure to cooperate with counsel." Motion to Withdraw as Counsel

3 at 1 (Aug. 15, 2022). On repeated occasions, Young failed to appear at counsel's office. Id. 4 111. DISCUSSION 5 Rule 41(lb) of the Guam Rules of Civil Procedure ("GRCP") reads, in pertinent part, as 6

7 follows:

8 (b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for 9 dismissal of an action or of any claim against the defendant. Unless the court in its 10 order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of 11 jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. 12

13 GRCP 41(b). The Court analyzes a GRCP 41(b) motion to dismiss for failure to prosecute

14 under the Ninth Circuit's five-factor test from In re Eigen, 31 F. ad 1447 (9th Cir. 1995), as

15 adopted by the Guam Supreme Court; in Santos v. Carney, 1997 Guam 4 and Logan v. 16 Mc Creadie, 2014 Guam 19: 17 (l) the public's interest in expeditious resolution of litigation, 18 (2) the court's need to manage its docket, 19 (3) the risk of prejudice to the defendants, (4) the public policy favoring the disposition of cases on their merits, and 20 (5) the availability of less drastic sanctions 21 . . . . . . Lucan, 2014 Guam 19 1[6. In passing on a motlon for dlsmlssal under these clrcumstances, the 22 Supreme Court of Guam has ruled that "[d]ismissa1 is appropriate if at least four factors favor 23

24 dismissal or three factors 'strongly' support dismissal." Park v. Kawashima, 2010 Guam 10 11 10

25 (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). The Cou1"f shall analyze

26 these factors under these particular circumstances. 27

28 Decision and Order Granting Motion to Dismiss for Failure to Prosecute CV0299-19,Hollers v. Young etal. Page 3 of 8 1. The public's interest in the expeditious resolution of litigation and the 1 court's needs to manage its docket warrants dismissal of the action. 2 "The docket management factor is ordinarily considered in conjunction with the public's 3

4 i nteres t i n the ex ped i ti ou s res ol u ti on of l i ti g a ti on i n d etermi ni ng w hether there w a s a n

5 unreasonable delay." Santos, 1997 Guam 4 11 7 (citing In re Eigen, 31 F. ad at 1452). In

6 determining whether the delay was unreasonable, the Court must "take] into consideration the

7 length of and reasons for the delay." Logan, 2014 Guam 19 118. "The Plaintiff bears the burden 8 of showing that the delay is reasonable and that the defendant is not prejudiced by the delay. If 9

10 there is a reasonable excuse for the inaction, then the burden shifts to the defendant who must

11 then demonstrate prejudice." S a n t os, 1997 Guam 4 1] 5 (citing Fr a n k l i n v . M u r p h y, 745 F.2d

12 1221, 1232 (9th Cir.1984)). Ultimately, it is recognized that "[t]riaI courts 'have an inherent 13 power to control their dockets. In the exercises of that power they may impose sanctions 14 including, where appropriate, default or dismissal.' " G o v ' t o f G u a m v . O ' K e e f e o n b e h a l f o f 15 16 H e i r s o f T o r i e s E s t . , 2018 Guam 4 (quoting I n r e P h e n y l p r o p a n o l a m i n e ( P P A ) P r o d s . L i m b .

17 Litig., 460 F.3d 1217, 1226 (9th Cir. 2006)).

18 By failing to respond to the Motion or lodge with the Court any good cause (or any 19 imaginable reason, for that matter) for the delay in prosecution, Young has not canted its 20

burden of showing the delay is reasonable. Neither does any evidence indicate an intent by 21

22 Young to resolve this matter in the near future. In r e E i g e n , 31 F. ad at 1452. To the contrary,

23 Young's inability to communicate with its own attorney suggests Young does not intend to 4 . u . . . . 2 contlnue wlth the prosecutlon of thls matter. See Motlon to Wlthdraw (Jan. 9, 2020) (Young's 25 first attorney seeking to withdraw from the case for Young's failure to cooperate and provide 26

27 critical documents and information), S e e a l s o Motion to Withdraw as Counsel (Aug. 15, 2022)

28 Decision and Order Granting Motion to Dismiss for Failure to Prosecute CV0299-19, Hollers v. Young et al. Page 4 of 8 (Young's second attorney seeldng to withdraw from the case for Young's failure to cooperate l 2 and meet with his attorney). An independent examination of the record further demonstrates the

3 extent to which this litigation has been needlessly prolonged. Young inc ected Cassidy's into this 4 .u . | . . . 11t1gat1on in early 2019. See Answer, Counterclalm, and Thlrd Party Practlce (Apr. 18, 2019). 5 Since their stipulation to the dismissal of Mr. Haller's claims in 2020, Young has failed to 6

7 pursue the claim further. Without more on the record, the Court finds the delay to be

8 unreasonable. The continued stay of this idle claim two years later neither advances the public

9 interest of the expeditious resolution of litigation nor allows the Court to effectively manage its 10 . . u 1 . . docket. Thus, conslderatlon of these factors weighs in favor of dlsmlssal. 11 2. Cassidy's suffers actual prejudice. 12

13 "Our case law makes clear that 'once a delay is determined to be unreasonable, prejudice

14 ... is presumed.' " Guam Depot of Educ. v. Guam Civil Serv. Comm'n, 2017 Guam 8 (citing

15 Kawashima, 2010 Guam 10 1121). This presumption is rebuttable upon a showing that the delay 16 was excusable and that the opposing party is not prejudiced. O 'Keefe, 2018 Guam 4 1] 34 ("This 17 8 presumption, however, is rebuttable, if the Government can show the delay was excusable and 1

19 that the Estate was not prejudiced by the delay.") .

20 Since Young's delay has been found to be unreasonable, prejudice towards Cassidy's is 21 presumed. This presumption of prejudice remains intact because Young has failed to appear or 22 offer any rebuttal. While "[p]resumed prejudice is sufficient to support a dismissal under GRCP 23

24 41(b)," the record also demonstrates Cassidy's suffers from actual prejudice. Santos, 1997

25 Guam 4 11 8. First, Young's failure to respond to overdue discovery requests has not only

26 blatantly violated GRCP 34, but it has also denied Cassidy's the opportunity to prepare a 27 defense. Second, as an insurance broker, Cassidy's must produce quarterly reports to its Errors 28 Decision and Order Granting Motion to Dismiss for Failure to Prosecute CV0299- 19,Halters v. Young et al. Page 5 of 8 and Omissions ("E&O") Carrier that cost it resources and attorney's fees. Deal. of Joseph C. 1

2 Razzano, 1] 6-7 (May 13, 2022). Since this litigation began, Cassidy's E&O premiums have

3 increased and this claim appears to be a contributing factor. Id. at 118. Thus, Young's failure to

4 prosecute this case causes a burden on Cassidy's that continues to swell the longer the case 5

lingers. This factor weighs strongly in favor of dismissal. 6

7 3. The public policy favoring the disposition of cases on their merits does not justify the delay and prejudice caused by Young's conduct. 8 "Generally, public policy favors the disposition of cases on their merits and disfavors the 9 10 dismissal of cases prematurely." Lucan, 2014 Guam 19 1[ 21 (citing Santos, 1997 Guam 4 119).

11 "Although public policy always favors a resolution of cases on their merits, and this factor

12 generally weighs in favor of the plaintiff, 'it must be weighed against the first two factors, the 13 expeditious resolution of litigation and the court's need to manage its docket.7 as Park, 2010 14 Guam 10 1] 22 (quoting In re Estate of Concepcion v. Siguenza, 2003 Guam 12 1] 23). "The 15

16 question is whether the policy of determining cases on their merits justifies the delay and

17 prejudice caused ...." Id. 18 Young's inaction for nearly two years in this matter has prevented Cassidy's from 19 receiving complete discovery responses. As a result, Young has defied GRCP 34 and prejudiced 20 Cassidy's. While public policy favors disposition of the case on its merits, "[i]t is sufficient to 21

22 demonstrate the plaintiff has "ignored his responsibilities to the court in prosecuting the action

23 and the defendant had suffered prejudice as a result thereof"Santos, 1997 Guam 4 'll 9 (quoting 24 . . Anderson v. Air West, Inc., 542 F. ad 522, 526 (9th. C1r. 1976)). Furthermore, "[t]he pubic 25 policy of determining cases on their merits should not be used defensively as a shield by a 26 27 passive Plaintiff who has failed in his obligation to prosecute the defendants with the vigor

28 Decision and Order Granting Motion to Dismiss for Failure to Prosecute CV0299-19, Hollers v. Young et al. Page 6 of 8 expected of a plaintiff." Id. Without appearing or answering Cassidy's Motion, Young has 1

2 failed to show how this factor outweighs the first factors of reaching an expeditious resolution

3 to this litigation and the Court's need to manage its docket. Accordingly, this factor also weighs 4 in favor of dismissal. 5 4. The availability of less drastic sanctions does not justify continuing to hold 6 Cassidy's hostage. 7 "[I]t is not a per sh abuse of discretion for a trial judge to dismiss an action due to a 8 party's failure to prosecute without issuing advance warnings or lesser sanctions." Santos, 1997 9

10 Guam 4, 1110. The court is not "required to examine every single alternate remedy in deciding if

11 sanction of dismissal is appropriate."Park, 2010 Guam 10 1124. "[T]he reasonable exploration

12 of possible and meaningful alternatives is all that is required." Id. (quoting Anderson, 542 F.2d 13 at 525). "The trial court is not required to impose lesser sanctions, when the rules do not so 14 provide, and when too so would encourage neglect and noncompliance with the Guam Rules 15

16 of Civil Procedure."Santos, 1997 Guam 4, 1110.

17 As already discussed, Young has violated GRCP 34 as a consequence of their inaction. 18 Continuing to afford Young further time to pursue the claim would encourage neglect and 19 noncompliance with GRCP. While imposing warnings or monetary sanctions upon Young in 20

hopes of awakening their dormant claim could be a less drastic sanction available to the Court, 21

22 the Court also deems these alternatives to be inadequate under these particular circumstances.

23 First, the filing of Cassidy's Motion to dismiss for failure to prosecute should have 24 alerted Young and, at a minimum, given Young adequate notice that his claim was in danger of 25 being dismissed. Additionally, Young's counsel's subsequent motion to withdraw due to 26 27 Young's failure to comply with its obligation as a client and Young's silence in the face of such

28 Decision and Order Granting Motion to Dismiss for Failure to Prosecute CV0299-19, Hollers v. Young et al. Page 7 off notice justifies this Court's findings that any further warning would be futile and a waste of

2 judicial resources. Second, no monetary sanction against Young would cure the prejudice

3 already inflicted upon Cassidy's. Instead, Cassidy's would be forced to continue expending 4 funds to defendant against claims which Young clearly has no intention of pursuing. 5 IV. CONCLUSION 6 For the reasons set forth herein, and this Court specifically finding that all the factors 7

8 required under Santos weigh in favor of dismissing Young's claim for failure to prosecute, the

9 Court GRANTS Cassidy's Motion to Dismiss. Pursuant to Rule 41(b) of the GRCP, this 10 dismissal operates as an adjudication upon the merits; therefore, this case is DISMISSED 11 WITH PREJUDICE. 12

13 SEP SO ORDERED this - - - - 022022 ----------

17 Judge, Superior Court of Guam 18

I acknowledge that an electronic copy of the original was e-mailed to: 20

28 Decision and Order Granting Motion to Dismiss for Failure to Prosecute CV0299-19, Hallers v. Young et al. Page 8 of8