Levchyk v. BMW of North America LLC

• Court: District Court, W.D. Washington
• Decided: April 13, 2023
• Docket: 2:22-cv-01703
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6

7 GALINA LEVCHYK, et al. Case No. C22-1703RSM 8 Plaintiffs, ORDER DISMISSING CASE FOR 9 FAILURE TO PROSECUTE v. 10

11 BMW OF NORTH AMERICA LLC,

12 Defendant. 13 This matter comes before the Court sua sponte. Defendant removed from Snohomish 14 County Superior Court on December 1, 2022. On December 14, the Court ordered the parties to 15 16 submit a joint status report by January 24, 2023. Dkt. #6. A status report was submitted by 17 Defendant on January 25 with no input from Plaintiffs. Dkt. #8. Plaintiffs’ counsel 18 subsequently filed initial disclosures with the Court, indicating an awareness of these 19 proceedings. Dkt. #9. On March 23, 2023, the Court issued a Minute Order pointing out 20 Plaintiffs’ failure to participate in the Court-ordered joint status report and noting that Plaintiffs’ 21 22 counsel has not yet been admitted to the Western District of Washington. The Minute Order 23 then states: 24 Per LCR 83.1(d), if an out of state attorney would like to appear 25 Pro Hac Vice (PHV) in a case, the attorney first must obtain local counsel and an application to appear PHV must be submitted. 26 Accordingly, Plaintiff is now ORDERED TO SHOW CAUSE on 27 or before Monday, April 3, 2023, why this action should not be 28 dismissed for failure to comply with the Court’s Order and the local rules regarding attorney admission. Absent a timely response 1 to this Minute Order, the case WILL BE DISMISSED without 2 prejudice.

3 Id. at 1–2. Plaintiffs have failed to file a timely response to this Minute Order or otherwise 4 communicate with the Court. 5 Rule 41(b) allows district courts to dismiss an action for failure to prosecute or to 6 comply with rules or a court order. See Fed. R. Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 7 8 626, 629-30, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962) (a district court's “power to [dismiss an 9 action for failure to prosecute] is necessary in order to prevent undue delays in the disposition of 10 pending cases and to avoid congestion” in the calendars of the district courts); Hells Canyon 11 Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (explaining that “courts 12 13 may dismiss under Rule 41(b) sua sponte” for a plaintiff’s failure to prosecute or comply with 14 the court’s orders or the Federal Rules of Civil Procedure); Ghazali v. Moran, 46 F.3d 52, 53 15 (9th Cir. 1995) (failure to follow a district court’s local rules is a proper ground for dismissal). 16 Rule 41(b) requires a plaintiff to prosecute their case with “reasonable diligence” if a plaintiff is 17 to avoid dismissal. Moore v. Telfon Commc’ns Corp., 589 F.2d 959, 967 (9th Cir. 1978) 18 19 (quoting Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976)). Where a court considers 20 dismissal as a remedy for failure to prosecute, the court is to consider: “(1) the public’s interest 21 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 22 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; 23 and (5) the availability of less drastic sanctions.” Thompson v. Hous. Auth. of City of Los 24 25 Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 26 Plaintiffs’ failure to communicate with opposing counsel or to obtain local counsel, and 27 subsequent failure to respond to the Court’s Minute Order or to communicate with the Court has 28 led to the conclusion that they are no longer interested in pursuing this lawsuit. This case 1 2 cannot be resolved without the participation of Plaintiffs, and the Court is convinced that no 3 lesser sanction would be appropriate. 4 Having considered the entire record, the Court hereby finds and ORDERS that this case 5 is DISMISSED without prejudice. 6 DATED this 13th day of April, 2023. 7 8 9 A 10 11 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28