1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCIS MAHON, No. 2:14-cv-02972-TLN-EFB 12 Plaintiff, 13 v. ORDER DISMISSING CASE PURSUANT TO RULE 25(a)(1) 14 MORTON GOLF, LLC, 15 Defendant. 16 17 This matter is before the Court on Defendant Morton Golf, LLC’s (“Defendant”) Motion 18 to Dismiss for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). (ECF No. 19 36.) Plaintiff Francis Mahon (“Plaintiff”) opposes the motion. (ECF No. 37.) For the reasons set 20 for below, Defendant’s motion is hereby DENIED, however, this case is DISMISSED without 21 prejudice pursuant to Federal Rule of Civil Procedure 25(a)(1). 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff’s initial Complaint was removed to this Court on December 24, 2014, and alleged 3 violations of the Americans with Disabilities Act (“ADA”) and California’s Unruh Civil Rights 4 Act (“Unruh Act”). (ECF No. 1.) Plaintiff, a golfer with a disability, alleged Defendant’s 5 prohibition against him using his electric wheelchair on its golf course violated both state and 6 federal law. (ECF No. 1. at 17, 19.) 7 Following the Court’s denial of Plaintiff’s motion for a preliminary injunction, (ECF No. 8 24) Defendant filed a motion for sanctions arguing Plaintiff’s motion seeking a preliminary 9 injunction was “legally and factually baseless” (ECF No. 25). On October 3, 2018, the Court 10 denied Defendant’s motion and noted that the basis for the requested sanctions, Plaintiff’s motion 11 for a preliminary injunction, contained “arguably reasonable legal claims.” (ECF No. 29 at 5.) 12 The Court then issued an Order on October 4, 2018, requesting the parties file a joint status report 13 within thirty days indicating the parties’ readiness to proceed to trial. (ECF No. 30.) Defendant 14 submitted a separate status report on November 2, 2018. (ECF No. 31.) That same day, 15 Plaintiff’s counsel filed a Suggestion of Death notifying the Court and Defendant that Plaintiff 16 died on July 3, 2018. (ECF No. 32.) Plaintiff did not file a separate status report. 17 In response to Defendant’s separate status report, on November 14, 2018, the Court 18 ordered Plaintiff to show cause as to why he should not be sanctioned for his failure to participate 19 in the status report. (ECF No. 33.) On November 28, 2018, Plaintiff filed a response to the 20 Court’s Order to show cause and urged the Court to dismiss the case pursuant to Federal Rule of 21 Civil Procedure 25 if no successor of Plaintiff moved to substitute in as a party. (ECF No. 34 at 22 1–2.) 23 After the Suggestion of Death was filed (ECF No. 32), neither party filed a motion to 24 substitute pursuant to Federal Rule of Civil Procedure 25(a)(1). On December 26, 2018, 25 Defendant filed a Motion to Dismiss for Lack of Prosecution urging the Court to dismiss the 26 matter without prejudice pursuant to Federal Rule of Civil Procedure 41(b). (ECF No. 36 at 2.) 27 Plaintiff submitted an opposition to Defendant’s Motion (ECF No. 37) to which Defendant 28 submitted a reply (ECF No. 38). 1 II. STANDARD OF LAW 2 A. Federal Rule of Civil Procedure 41(b): Dismissal for Failure to Prosecute 3 “If the plaintiff fails to prosecute [. . .], a defendant may move to dismiss the action or any 4 claim against it.” Federal Rule of Civil Procedure (“Rule”) 41(b). Rule 41(b) is, in large part, a 5 “housekeeping measure” which allows federal courts to manage their dockets. Nealey v. 6 Transportacion Maritima Mexicana, S. A., 662 F.2d 1275, 1279 (9th Cir. 1980). However, 7 “dismissal under Rule 41(b) is a sanction, to be imposed only in ‘extreme circumstances.’” 8 Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063 (9th Cir. 2004). The district court must weigh 9 the following five factors in considering a motion under Rule 41(b): (1) the public’s interest in 10 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 11 prejudice to the defendants; (4) the public policy favoring disposition of cases on the merits; and 12 (5) the availability of less drastic alternative. Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th 13 Cir. 2004). In examining these factors, the court is not required to make an explicit finding to 14 show it has considered these factors. Id. 15 B. Federal Rule of Civil Procedure 25(a): Dismissal upon Death of Party 16 Rule 25(a) provides that if a party dies and the claim is not extinguished, the court may 17 order substitution, upon motion made by any party or the decedents successor or representative. 18 Rule 25(a). “If the motion is not made within 90 days after service of statement noting the death, 19 the action by or against the decedent must be dismissed.” Rule(a)(1) (emphasis added). The 20 proper filing of the suggestions of death, not the actual death itself, triggers the 90-day clock to 21 file a motion to substitute. See Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). If no motion 22 is made within the 90 days of the notice of death, Rule 25(a)(1) requires that action must be 23 dismissed but does not specify whether dismissal is with or without prejudice. Zanowick v. 24 Baxter Healthcare Corp., 850 F.3d 1090, 1094 (9th Cir. 2017). 25 III. ANALYSIS 26 Following Plaintiff’s death, Plaintiff’s ADA claim is now moot. See Kalani v. Starbuck 27 Coffee Co., 698 Fed. Appx. 883, 885 (9th Cir. 2017) (holding that an ADA claim is moot upon 28 death of the plaintiff as there is “necessarily no prospect of future injury”). However, Plaintiff’s 1 Unruh Act claim did not extinguish upon his death. Id.; Cal. Civ. Code § 52. 2 Defendant argues that the Court should dismiss this case without prejudice pursuant to 3 Rule 41(b) for failure to prosecute, (ECF No. 36 at 2), while Plaintiff’s counsel contends 4 Plaintiff’s death warrants a dismissal without prejudice pursuant to Rule 25(a) (ECF No. 34 at 1– 5 2). The Court finds that neither Plaintiff’s nor Plaintiff’s counsel’s conduct warrants dismissal 6 under Rule 41(b), thereby deeming dismissal under Rule 25(a) necessary in this case. 7 A. Permissibility of a Rule 41(b) Dismissal 8 Defendant urges the Court to dismiss pursuant to Rule 41(b) because of Plaintiff’s dilatory 9 conduct and allowing the case to “languish, without activity, for eighteen months.” (ECF No. 36 10 at 3.) Defendant argues that Plaintiff’s failure to diligently prosecute his case warrants the 11 dismissal. (ECF No. 36 at 5.) 12 Rule 41(b) provides a harsh remedy by which the district court can penalize the plaintiff, 13 and it should only be invoked in extreme circumstances. Indus. Bldg. Materials, Inc. v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCIS MAHON, No. 2:14-cv-02972-TLN-EFB 12 Plaintiff, 13 v. ORDER DISMISSING CASE PURSUANT TO RULE 25(a)(1) 14 MORTON GOLF, LLC, 15 Defendant. 16 17 This matter is before the Court on Defendant Morton Golf, LLC’s (“Defendant”) Motion 18 to Dismiss for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). (ECF No. 19 36.) Plaintiff Francis Mahon (“Plaintiff”) opposes the motion. (ECF No. 37.) For the reasons set 20 for below, Defendant’s motion is hereby DENIED, however, this case is DISMISSED without 21 prejudice pursuant to Federal Rule of Civil Procedure 25(a)(1). 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff’s initial Complaint was removed to this Court on December 24, 2014, and alleged 3 violations of the Americans with Disabilities Act (“ADA”) and California’s Unruh Civil Rights 4 Act (“Unruh Act”). (ECF No. 1.) Plaintiff, a golfer with a disability, alleged Defendant’s 5 prohibition against him using his electric wheelchair on its golf course violated both state and 6 federal law. (ECF No. 1. at 17, 19.) 7 Following the Court’s denial of Plaintiff’s motion for a preliminary injunction, (ECF No. 8 24) Defendant filed a motion for sanctions arguing Plaintiff’s motion seeking a preliminary 9 injunction was “legally and factually baseless” (ECF No. 25). On October 3, 2018, the Court 10 denied Defendant’s motion and noted that the basis for the requested sanctions, Plaintiff’s motion 11 for a preliminary injunction, contained “arguably reasonable legal claims.” (ECF No. 29 at 5.) 12 The Court then issued an Order on October 4, 2018, requesting the parties file a joint status report 13 within thirty days indicating the parties’ readiness to proceed to trial. (ECF No. 30.) Defendant 14 submitted a separate status report on November 2, 2018. (ECF No. 31.) That same day, 15 Plaintiff’s counsel filed a Suggestion of Death notifying the Court and Defendant that Plaintiff 16 died on July 3, 2018. (ECF No. 32.) Plaintiff did not file a separate status report. 17 In response to Defendant’s separate status report, on November 14, 2018, the Court 18 ordered Plaintiff to show cause as to why he should not be sanctioned for his failure to participate 19 in the status report. (ECF No. 33.) On November 28, 2018, Plaintiff filed a response to the 20 Court’s Order to show cause and urged the Court to dismiss the case pursuant to Federal Rule of 21 Civil Procedure 25 if no successor of Plaintiff moved to substitute in as a party. (ECF No. 34 at 22 1–2.) 23 After the Suggestion of Death was filed (ECF No. 32), neither party filed a motion to 24 substitute pursuant to Federal Rule of Civil Procedure 25(a)(1). On December 26, 2018, 25 Defendant filed a Motion to Dismiss for Lack of Prosecution urging the Court to dismiss the 26 matter without prejudice pursuant to Federal Rule of Civil Procedure 41(b). (ECF No. 36 at 2.) 27 Plaintiff submitted an opposition to Defendant’s Motion (ECF No. 37) to which Defendant 28 submitted a reply (ECF No. 38). 1 II. STANDARD OF LAW 2 A. Federal Rule of Civil Procedure 41(b): Dismissal for Failure to Prosecute 3 “If the plaintiff fails to prosecute [. . .], a defendant may move to dismiss the action or any 4 claim against it.” Federal Rule of Civil Procedure (“Rule”) 41(b). Rule 41(b) is, in large part, a 5 “housekeeping measure” which allows federal courts to manage their dockets. Nealey v. 6 Transportacion Maritima Mexicana, S. A., 662 F.2d 1275, 1279 (9th Cir. 1980). However, 7 “dismissal under Rule 41(b) is a sanction, to be imposed only in ‘extreme circumstances.’” 8 Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063 (9th Cir. 2004). The district court must weigh 9 the following five factors in considering a motion under Rule 41(b): (1) the public’s interest in 10 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 11 prejudice to the defendants; (4) the public policy favoring disposition of cases on the merits; and 12 (5) the availability of less drastic alternative. Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th 13 Cir. 2004). In examining these factors, the court is not required to make an explicit finding to 14 show it has considered these factors. Id. 15 B. Federal Rule of Civil Procedure 25(a): Dismissal upon Death of Party 16 Rule 25(a) provides that if a party dies and the claim is not extinguished, the court may 17 order substitution, upon motion made by any party or the decedents successor or representative. 18 Rule 25(a). “If the motion is not made within 90 days after service of statement noting the death, 19 the action by or against the decedent must be dismissed.” Rule(a)(1) (emphasis added). The 20 proper filing of the suggestions of death, not the actual death itself, triggers the 90-day clock to 21 file a motion to substitute. See Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). If no motion 22 is made within the 90 days of the notice of death, Rule 25(a)(1) requires that action must be 23 dismissed but does not specify whether dismissal is with or without prejudice. Zanowick v. 24 Baxter Healthcare Corp., 850 F.3d 1090, 1094 (9th Cir. 2017). 25 III. ANALYSIS 26 Following Plaintiff’s death, Plaintiff’s ADA claim is now moot. See Kalani v. Starbuck 27 Coffee Co., 698 Fed. Appx. 883, 885 (9th Cir. 2017) (holding that an ADA claim is moot upon 28 death of the plaintiff as there is “necessarily no prospect of future injury”). However, Plaintiff’s 1 Unruh Act claim did not extinguish upon his death. Id.; Cal. Civ. Code § 52. 2 Defendant argues that the Court should dismiss this case without prejudice pursuant to 3 Rule 41(b) for failure to prosecute, (ECF No. 36 at 2), while Plaintiff’s counsel contends 4 Plaintiff’s death warrants a dismissal without prejudice pursuant to Rule 25(a) (ECF No. 34 at 1– 5 2). The Court finds that neither Plaintiff’s nor Plaintiff’s counsel’s conduct warrants dismissal 6 under Rule 41(b), thereby deeming dismissal under Rule 25(a) necessary in this case. 7 A. Permissibility of a Rule 41(b) Dismissal 8 Defendant urges the Court to dismiss pursuant to Rule 41(b) because of Plaintiff’s dilatory 9 conduct and allowing the case to “languish, without activity, for eighteen months.” (ECF No. 36 10 at 3.) Defendant argues that Plaintiff’s failure to diligently prosecute his case warrants the 11 dismissal. (ECF No. 36 at 5.) 12 Rule 41(b) provides a harsh remedy by which the district court can penalize the plaintiff, 13 and it should only be invoked in extreme circumstances. Indus. Bldg. Materials, Inc. v. 14 Interchemical Corp., 437 F.2d 1336, 1339 (9th Cir. 1970). The Court evaluates the totality of 15 five factors when deciding a Rule 41(b) dismissal. Yourish, 191 F.3d at 990. While the Court is 16 not required to make explicit findings for each factor, dispositive to its evaluation is the 17 availability of less drastic alternatives. The Court finds that less drastic alternatives exist. Rule 18 41(b) serves the purpose of punishing and deterring unreasonable delay on the part of the 19 plaintiffs. See Collins v. Pitchess, 641 F.2d 740, 742 (9th Cir. 1981). It is a “sanction for 20 disobedience” to be imposed in extreme circumstances. Edwards v. Marin Park, Inc., 356 F.3d 21 1058, 1063 (9th Cir. 2004). Here, Plaintiff has died, so dismissal under Rule 41(b) will not serve 22 its intended purpose. Further, Plaintiff’s death, not either parties’ alleged delay (see ECF No. 36- 23 1 at 5–6; ECF No. 37-2 at 2–5), prompted the motion for dismissal (ECF No. ECF No. 36). 24 Plaintiff’s death should not result in a “sanction for disobedience,” and Rule 25(a) proscribes the 25 process for dismissal of a claim upon a party’s death. Rule (a)(1). Accordingly, Defendant’s 26 Motion (ECF No. 36) is denied. 27 /// 28 /// 1 B. Appropriateness of a Rule 25(a) Dismissal 2 The Court finds dismissal pursuant to Rule 25(a) to be appropriate in this situation. 3 Plaintiff’s death spurred the motion before the Court as well as Plaintiff’s request for Rule 25(a) 4 dismissal. (See ECF No. 34 at 1–2; ECF No. 36 at 3.) Though Defendant criticizes Plaintiff 5 counsel’s delay in notifying the Court and Defendant of the Plaintiff’s death (ECF No. 36 at 3), 6 Rule 25 does not mandate how soon after a party’s death such a notice must be filed. As more 7 than ninety (90) days have passed since the Suggestion of Death was filed (ECF No. 32), Rule 8 25(a) requires the Court to dismiss the case. The Court has discretion whether to dismiss with or 9 without prejudice. Yourish, 191 F.3d at 990. Upon the request of both parties, the Court will 10 dismiss without prejudice. Accordingly, this case is now DISMISSED pursuant to Rule 25(a)(1). 11 IV. CONCLUSION 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Defendant’s Motion to Dismiss (ECF No. 36) is DENIED; 14 2. The case is DISMISSED without prejudice pursuant to Rule 25(a)(1). 15 Dated: September 11, 2019 16 17 18 19 20 21 22 23 24 25 26 27 28