1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 18-cv-1918-AJB-AGS 12 Jeffrey ROBINSON, REPORT AND RECOMMENDATION TO DISMISS CASE FOR FAILURE 13 Plaintiff, TO PROSECUTE 14 v. 15 CITY OF SAN DIEGO, et al., 16 Defendants. 17 18 Plaintiff’s counsel has failed to participate in these proceedings for many months. 19 So this case should be dismissed for failure to prosecute. 20 BACKGROUND 21 A. Early Proceedings and First Show-Cause Hearing 22 In February 2019, plaintiff’s counsel failed to respond to defense counsel’s emails 23 to arrange the Rule 26(f) conference. (ECF No. 12, at 1.) Plaintiff’s counsel ultimately 24 failed to participate in the February 27, 2019 Rule 26(f) conference and failed to contribute 25 to the Joint Discovery Plan, which the defense filed alone on March 11, 2019. (ECF No. 11, 26 at 3; ECF No. 12, at 1; ECF No. 17.) That same day, plaintiff’s counsel failed to submit 27 the Court-ordered Early Neutral Evaluation statement and failed to produce initial 28 1 disclosures, as ordered. (ECF No. 11, at 3; ECF No. 17; ECF No. 20-1, at 3.) Although 2 plaintiff’s counsel appeared for the March 18, 2019 ENE, he failed to meet his Court- 3 ordered obligations thereafter, such as: (1) failing to meet the May 13, 2019 deadline for 4 accepting or rejecting the Court’s mediator’s proposal; (2) failing to set up the May 14, 5 2019 joint phone call to chambers; and (3) failing to call in to chambers by 10:00 a.m. on 6 May 14, 2019. (ECF No. 17.) 7 On May 22, 2019, the Court held a show-cause hearing on plaintiff’s counsel’s 8 failure to participate and several missed deadlines; plaintiff’s counsel appeared for that 9 hearing. (ECF No. 19.) Although the Court discharged that show-cause order without 10 further action, the Court explicitly admonished plaintiff’s counsel: “If this sort of behavior 11 were to rear its head again in this litigation . . . I certainly would take a much more severe 12 approach, I think, to the sanctions that are appropriate.” (Digital Court Record File, 13 AGS_Courtroom_5C_20190522_154247, 17:10-17:35.) 14 B. Later Proceedings and Second Show-Cause Hearing 15 Despite this warning, plaintiff’s counsel has not meaningfully participated in the 16 litigation since the May 22 show-cause hearing. He failed to respond to the defense’s 17 requests for admission and for document-production by the July 22, 2019 deadline. (ECF 18 No. 20-2, at 2.) And he failed to respond to defense counsel’s emails and phone calls about 19 these discovery requests. (Id.) So, on August 12, 2019, the defense filed a motion to compel 20 discovery responses. (ECF No. 20.) Plaintiff’s counsel failed to respond to that motion in 21 writing, and then failed to appear at the motion-to-compel hearing. (ECF No. 22.) 22 Because of that missed court appearance, the Court ordered plaintiff’s counsel to 23 appear on September 26, 2019, to show cause why he should not be held in contempt. (ECF 24 No. 21.) But he again failed to appear. (ECF No. 23.) 25 26
27 1 Indeed, plaintiff’s counsel still had not provided his initial disclosures as of August 28 1 DISCUSSION 2 “The district court has the inherent power sua sponte to dismiss a case for lack of 3 prosecution.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). In order to do 4 so, there must be “unreasonable delay.” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 5 (9th Cir. 2010) (citation and quotation marks omitted). The Court must also consider the 6 following factors to determine if a dismissal for failure to prosecute is warranted: “(1) the 7 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 8 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition 9 of cases on their merits[;] and (5) the availability of less drastic sanctions.” Id. (citation and 10 quotation marks omitted). 11 A. Unreasonable Delay 12 Here, there is unreasonable delay. Initial disclosures were due by March 11, 2019, 13 and plaintiff’s discovery responses were due July 22, 2019. (ECF No. 11, at 3; ECF 14 No. 20-2, at 2.) Plaintiff’s counsel provided neither. (See ECF No. 20-2, at 2; ECF No. 22.) 15 And plaintiff’s counsel failed to appear at both the September 12 and September 26 16 hearings. (ECF Nos. 22-23.) Because the October 18, 2019 discovery deadline is fast 17 approaching, even if plaintiff’s counsel were to resume participating today, the Court 18 would likely have to extend the dates in this case to provide a meaningful opportunity for 19 both sides to conduct discovery. (See ECF No. 14, at 2.) This case should be nearing the 20 end of discovery; instead, it has not yet begun. 21 B. The Five Omstead Factors 22 1. Public’s Interest in Expeditious Resolution of Litigation 23 “[T]he public interest in expeditious resolution of litigation always favors 24 dismissal.” Yourish v. Cal. Amlifier, 191 F.3d 983, 990 (9th Cir. 1999). 25 2. Court’s Need to Manage its Docket 26 This case has “come to a complete halt” because of plaintiff’s counsel’s failure to 27 participate, and there is nothing to suggest that might change. See Yourish, 191 F.3d at 990. 28 Plaintiff’s counsel has failed to appear at two hearings in as many weeks and has not 1 responded to discovery requests or communication from opposing counsel. This Court has 2 also been required to schedule yet another show-cause hearing. Thus, the Court’s need to 3 manage its docket weighs in favor of dismissal. See id. 4 3. Risk of Prejudice to the Defendants 5 “The law presumes injury from unreasonable delay,” and thus the risk of prejudice 6 to defendants also weighs in favor of dismissal. In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 7 1994) (citation omitted). Moreover, “the risk of prejudice to the defendant is related to the 8 plaintiff’s reason” for failing to timely participate in the litigation. Yourish, 191 F.3d at 9 991. Unlike the Yourish plaintiffs, who at least offered a “very poor reason for their 10 default,” see id., plaintiff’s counsel has offered no reason at all for his absenteeism, nor has 11 he communicated in any way for some time. And due to plaintiff’s counsel’s failure to 12 respond to discovery requests, defendants have been unable to prepare their case. 13 4. Public Policy Favoring Disposition of Cases on Their Merits 14 Public policy favors disposing of cases on the merits, and this factor weighs against 15 dismissal. But see Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991) 16 (“Although there is indeed a policy favoring disposition on the merits, it is the 17 responsibility of the moving party to move towards that disposition at a reasonable pace, 18 and to refrain from dilatory and evasive tactics.”). 19 5. Availability of Less Drastic Sanctions 20 Since this Court has already attempted a less drastic sanction, this final factor also 21 weighs in favor of dismissal. On September 12, 2019, this Court ordered plaintiff to 22 respond to the defense’s document-production requests, which plaintiff’s counsel failed to 23 do. (See ECF No. 22.) And the Court treated “the contents of defendants’ requests for 24 admissions as having been admitted.” (Id.) This Court also issued an Order to Show Cause, 25 giving plaintiff’s counsel an opportunity to explain why he should not be held in contempt. 26 (ECF No. 21.) These measures have had no effect on plaintiff’s counsel, as he failed to 27 appear at the show-cause hearing and to respond to defendants’ discovery requests.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 18-cv-1918-AJB-AGS 12 Jeffrey ROBINSON, REPORT AND RECOMMENDATION TO DISMISS CASE FOR FAILURE 13 Plaintiff, TO PROSECUTE 14 v. 15 CITY OF SAN DIEGO, et al., 16 Defendants. 17 18 Plaintiff’s counsel has failed to participate in these proceedings for many months. 19 So this case should be dismissed for failure to prosecute. 20 BACKGROUND 21 A. Early Proceedings and First Show-Cause Hearing 22 In February 2019, plaintiff’s counsel failed to respond to defense counsel’s emails 23 to arrange the Rule 26(f) conference. (ECF No. 12, at 1.) Plaintiff’s counsel ultimately 24 failed to participate in the February 27, 2019 Rule 26(f) conference and failed to contribute 25 to the Joint Discovery Plan, which the defense filed alone on March 11, 2019. (ECF No. 11, 26 at 3; ECF No. 12, at 1; ECF No. 17.) That same day, plaintiff’s counsel failed to submit 27 the Court-ordered Early Neutral Evaluation statement and failed to produce initial 28 1 disclosures, as ordered. (ECF No. 11, at 3; ECF No. 17; ECF No. 20-1, at 3.) Although 2 plaintiff’s counsel appeared for the March 18, 2019 ENE, he failed to meet his Court- 3 ordered obligations thereafter, such as: (1) failing to meet the May 13, 2019 deadline for 4 accepting or rejecting the Court’s mediator’s proposal; (2) failing to set up the May 14, 5 2019 joint phone call to chambers; and (3) failing to call in to chambers by 10:00 a.m. on 6 May 14, 2019. (ECF No. 17.) 7 On May 22, 2019, the Court held a show-cause hearing on plaintiff’s counsel’s 8 failure to participate and several missed deadlines; plaintiff’s counsel appeared for that 9 hearing. (ECF No. 19.) Although the Court discharged that show-cause order without 10 further action, the Court explicitly admonished plaintiff’s counsel: “If this sort of behavior 11 were to rear its head again in this litigation . . . I certainly would take a much more severe 12 approach, I think, to the sanctions that are appropriate.” (Digital Court Record File, 13 AGS_Courtroom_5C_20190522_154247, 17:10-17:35.) 14 B. Later Proceedings and Second Show-Cause Hearing 15 Despite this warning, plaintiff’s counsel has not meaningfully participated in the 16 litigation since the May 22 show-cause hearing. He failed to respond to the defense’s 17 requests for admission and for document-production by the July 22, 2019 deadline. (ECF 18 No. 20-2, at 2.) And he failed to respond to defense counsel’s emails and phone calls about 19 these discovery requests. (Id.) So, on August 12, 2019, the defense filed a motion to compel 20 discovery responses. (ECF No. 20.) Plaintiff’s counsel failed to respond to that motion in 21 writing, and then failed to appear at the motion-to-compel hearing. (ECF No. 22.) 22 Because of that missed court appearance, the Court ordered plaintiff’s counsel to 23 appear on September 26, 2019, to show cause why he should not be held in contempt. (ECF 24 No. 21.) But he again failed to appear. (ECF No. 23.) 25 26
27 1 Indeed, plaintiff’s counsel still had not provided his initial disclosures as of August 28 1 DISCUSSION 2 “The district court has the inherent power sua sponte to dismiss a case for lack of 3 prosecution.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). In order to do 4 so, there must be “unreasonable delay.” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 5 (9th Cir. 2010) (citation and quotation marks omitted). The Court must also consider the 6 following factors to determine if a dismissal for failure to prosecute is warranted: “(1) the 7 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 8 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition 9 of cases on their merits[;] and (5) the availability of less drastic sanctions.” Id. (citation and 10 quotation marks omitted). 11 A. Unreasonable Delay 12 Here, there is unreasonable delay. Initial disclosures were due by March 11, 2019, 13 and plaintiff’s discovery responses were due July 22, 2019. (ECF No. 11, at 3; ECF 14 No. 20-2, at 2.) Plaintiff’s counsel provided neither. (See ECF No. 20-2, at 2; ECF No. 22.) 15 And plaintiff’s counsel failed to appear at both the September 12 and September 26 16 hearings. (ECF Nos. 22-23.) Because the October 18, 2019 discovery deadline is fast 17 approaching, even if plaintiff’s counsel were to resume participating today, the Court 18 would likely have to extend the dates in this case to provide a meaningful opportunity for 19 both sides to conduct discovery. (See ECF No. 14, at 2.) This case should be nearing the 20 end of discovery; instead, it has not yet begun. 21 B. The Five Omstead Factors 22 1. Public’s Interest in Expeditious Resolution of Litigation 23 “[T]he public interest in expeditious resolution of litigation always favors 24 dismissal.” Yourish v. Cal. Amlifier, 191 F.3d 983, 990 (9th Cir. 1999). 25 2. Court’s Need to Manage its Docket 26 This case has “come to a complete halt” because of plaintiff’s counsel’s failure to 27 participate, and there is nothing to suggest that might change. See Yourish, 191 F.3d at 990. 28 Plaintiff’s counsel has failed to appear at two hearings in as many weeks and has not 1 responded to discovery requests or communication from opposing counsel. This Court has 2 also been required to schedule yet another show-cause hearing. Thus, the Court’s need to 3 manage its docket weighs in favor of dismissal. See id. 4 3. Risk of Prejudice to the Defendants 5 “The law presumes injury from unreasonable delay,” and thus the risk of prejudice 6 to defendants also weighs in favor of dismissal. In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 7 1994) (citation omitted). Moreover, “the risk of prejudice to the defendant is related to the 8 plaintiff’s reason” for failing to timely participate in the litigation. Yourish, 191 F.3d at 9 991. Unlike the Yourish plaintiffs, who at least offered a “very poor reason for their 10 default,” see id., plaintiff’s counsel has offered no reason at all for his absenteeism, nor has 11 he communicated in any way for some time. And due to plaintiff’s counsel’s failure to 12 respond to discovery requests, defendants have been unable to prepare their case. 13 4. Public Policy Favoring Disposition of Cases on Their Merits 14 Public policy favors disposing of cases on the merits, and this factor weighs against 15 dismissal. But see Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991) 16 (“Although there is indeed a policy favoring disposition on the merits, it is the 17 responsibility of the moving party to move towards that disposition at a reasonable pace, 18 and to refrain from dilatory and evasive tactics.”). 19 5. Availability of Less Drastic Sanctions 20 Since this Court has already attempted a less drastic sanction, this final factor also 21 weighs in favor of dismissal. On September 12, 2019, this Court ordered plaintiff to 22 respond to the defense’s document-production requests, which plaintiff’s counsel failed to 23 do. (See ECF No. 22.) And the Court treated “the contents of defendants’ requests for 24 admissions as having been admitted.” (Id.) This Court also issued an Order to Show Cause, 25 giving plaintiff’s counsel an opportunity to explain why he should not be held in contempt. 26 (ECF No. 21.) These measures have had no effect on plaintiff’s counsel, as he failed to 27 appear at the show-cause hearing and to respond to defendants’ discovery requests. And 28 1 || because of counsel’s complete failure to communicate with defendants or this Court, it is 2 unclear how any other measure would effectively be conveyed to him. 3 Despite this Court’s efforts to encourage plaintiffs counsel to participate in this 4 ||case, he has taken no action for months. Weighing the various Omstead factors together, 5 ||the Court finds that dismissal with prejudice is amply warranted. Even if a less drastic 6 sanction could be fashioned in an effective manner, dismissal would still be the preferred 7 remedy, as the first three Omstead factors weigh so heavily here. 8 CONCLUSION 9 Thus, this Court recommends that this case be DISMISSED with prejudice for 10 || failure to prosecute. By October 11, 2019, the parties must file any objections to this report. 11 28 U.S.C. § 636(b)(1). The party receiving any such objection has 14 days to file any 12 response. See Fed. R. Civ. P. 72(b)(2). 13 Dated: September 27, 2019 14 15 Hon. ndrew G. Schopler United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28