1 2 3 4 5 6 7 10 11 CHRISTINE ANN RUSSELL, Case No.: 21cv1029-LL-MDD
12 Plaintiff, ORDER DENYING MOTION TO 13 v. DISMISS FOR FAILURE TO PROSECUTE AND ISSUING ORDER 14 THE UNITED STATES OF AMERICA, 15 Defendant. [ECF No. 45] 16 17 18 Before the Court is Defendant United States’ Motion to Dismiss for Failure to 19 Prosecute or, in the Alternative, for Summary Judgment (hereinafter “Motion to Dismiss”). 20 ECF No. 45. The Motion to Dismiss is based on Plaintiff’s failure to comply with federal 21 rules and the Court’s orders. Id. at 1–2. Plaintiff, proceeding pro se and in forma pauperis, 22 filed a document titled “Memorandum for the Southern District Court of California” about 23 one and a half months after the deadline to file an opposition to the Motion to Dismiss. 24 ECF No. 59. 25 For the reasons set forth below, the Court DENIES the Motion to Dismiss. Instead, 26 Plaintiff is ORDERED to (1) sign the medical release on or before March 14, 2023 and 27 (2) produce documents responsive to Defendant’s discovery requests on or before 28 April 4, 2023. 2 On May 28, 2021, Plaintiff filed a complaint for medical negligence under the 3 Federal Tort Claims Act alleging that members of the San Diego Veteran Affairs Medical 4 Center failed to investigate and timely diagnosis her breast cancer despite her repeated 5 complaints of chest pain over more than two years, resulting in metastasis, delayed 6 treatment, and additional pain and suffering. ECF No. 1. 7 When Plaintiff refused to participate in a Rule 26(f) conference or in preparing a 8 joint discovery plan with opposing counsel, the Court held a status conference on 9 May 12, 2022 and instructed Plaintiff about discovery requirements, scheduling order 10 deadlines, and her obligations to prosecute the case, including a medical release for her 11 records. See ECF Nos. 24; 37 at 2–3. The Court subsequently issued a scheduling order 12 that set the deadline for fact and expert discovery on October 12, 2022. ECF No. 27 at 2. 13 Between May 12, 2022 and August 12, 2022, Defendant attempted to obtain a 14 medical release from Plaintiff numerous times by mail, phone, email, and text message. 15 ECF No. 45 at 3; ECF No. 30-1, Declaration of Leslie Gardner in support of Defendant’s 16 ex parte application to compel Plaintiff’s release of her medical records and compliance 17 with discovery requirements (“Gardner Decl.”), ¶¶ 7–24. Plaintiff also failed to provide 18 initial disclosures, respond to Defendant’s requests for production and interrogatories, or 19 designate expert witnesses. ECF No. 45 at 3; Gardner Decl. ¶¶ 7–26. 20 On August 12, 2022, Defendant filed an ex parte application to compel Plaintiff to 21 release her medical records and comply with Rules 26(a)(1), 33, and 34 of the Federal 22 Rules of Civil Procedure to provide initial disclosures and respond to interrogatories and 23 requests for production. ECF No. 30. When Plaintiff failed to respond to the motion to 24 compel, the Court issued on September 19, 2022 an order to show cause (“OSC”) why it 25 should not dismiss the case for Plaintiff’s failure to comply with the Court’s order to brief 26 the motion to compel and failure to comply with the discovery deadlines. ECF No. 35. The 27 Court warned that a failure to respond to the OSC in writing by October 3, 2022 could 28 result in dismissal of this case. Id. at 6. Plaintiff did not respond to the OSC. However, also 1 on September 19, 2022, Plaintiff filed a motion to amend the scheduling order governing 2 discovery to allow her time to appeal the Court’s denial of her requests for counsel. 3 ECF No. 36. Her motion was denied by the Court. ECF No. 37. 4 On November 14, 2022, Defendant filed the instant Motion to Dismiss. ECF No. 45. 5 The Court delayed briefing on the Motion to Dismiss until the ruling on the motion to 6 compel was issued. ECF No. 48. On November 22, 2022, the Court granted Defendant’s 7 motion to compel and ordered Plaintiff to produce by December 2, 2022 documents 8 responsive to Defendant’s discovery requests, including a release for the medical records 9 sought. ECF No. 49 at 5. Plaintiff failed to comply with the Court’s order. See ECF 10 No. 51. On December 12, 2022, the Court issued a scheduling order for briefing on 11 Defendant’s Motion to Dismiss requiring Plaintiff to file her opposition by January 6, 2023. 12 ECF No. 53. Plaintiff did not file an opposition, but instead filed a Memorandum on 13 February 22, 2023 that does not address the Motion to Dismiss. ECF No. 59. 15 Rule 41(b) of the Federal Rules of Civil Procedure provides that a defendant may 16 move to dismiss a lawsuit “[i]f the plaintiff fails to prosecute or to comply with these rules 17 or a court order.” Fed. R. Civ. P. 41(b). Such a dismissal operates as an adjudication on the 18 merits. Id. Additionally, courts have an inherent power to “manage their own affairs so as 19 to achieve the orderly and expeditious disposition of cases” and may dismiss a case sua 20 sponte for lack of prosecution or failure to comply with any order of the court. Link v. 21 Wabash R. Co., 370 U.S. 626, 629–31 (1962); see Ferdik v. Bonzelet, 963 F.2d 1258, 1260 22 (9th Cir. 1992), as amended (May 22, 1992). “Dismissal is a harsh penalty and is to be 23 imposed only in extreme circumstances.” Henderson v. Duncan, 779 F.2d 1421, 1423 24 (9th Cir. 1986) (citation omitted). 25 When considering whether to dismiss a case for lack of prosecution, the court must 26 weigh the following factors: (1) the public’s interest in expeditious resolution of litigation, 27 (2) the court’s need to manage its docket, (3) the risk of prejudice to the defendants, 28 1 (4) the public policy favoring disposition of cases on their merits, and (5) the availability 2 of less drastic sanctions. Id. (citation omitted). 4 The first three factors weigh in favor of dismissal. It is apparent to the Court that 5 Plaintiff’s failure to cooperate in discovery, as required by the Federal Rules of Civil 6 Procedure, and her failure to comply with the Court’s orders has unnecessarily delayed this 7 case. Plaintiff filed her complaint more than twenty months ago, but has produced no 8 discovery, and the deadlines for discovery and expert disclosures have come and gone. 9 This substantial delay supports the first two dismissal factors and weighs in favor of 10 granting the Motion to Dismiss. See Ferdik, 963 F.2d at 1261 (finding first two dismissal 11 factors supported the district court’s dismissal for lack of prosecution because the case 12 “dragged on for over a year and a half before it finally was dismissed”). The third factor of 13 prejudice to Defendant also weighs in favor of dismissal because Plaintiff’s refusal to 14 cooperate in discovery has prevented Defendant from obtaining evidence that is relevant 15 to Plaintiff’s medical claims and Defendant’s defenses, which also precluded Defendant 16 from obtaining its own expert reports. See In re Phenylpropanolamine (PPA) Prod. Liab. 17 Litig., 460 F.3d 1217, 1227 (9th Cir. 2006) (citation omitted) (“A defendant suffers 18 prejudice if the plaintiff's actions impair the defendant's ability to go to trial or threaten to 19 interfere with the rightful decision of the case.”). Plaintiff has prejudiced Defendant by 20 refusing to release her medical records, despite an express order from the Court and a 21 determination that they are relevant to her claims. Id. (citation omitted) (“Failing to produce 22 documents as ordered is considered sufficient prejudice.”).
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1 2 3 4 5 6 7 10 11 CHRISTINE ANN RUSSELL, Case No.: 21cv1029-LL-MDD
12 Plaintiff, ORDER DENYING MOTION TO 13 v. DISMISS FOR FAILURE TO PROSECUTE AND ISSUING ORDER 14 THE UNITED STATES OF AMERICA, 15 Defendant. [ECF No. 45] 16 17 18 Before the Court is Defendant United States’ Motion to Dismiss for Failure to 19 Prosecute or, in the Alternative, for Summary Judgment (hereinafter “Motion to Dismiss”). 20 ECF No. 45. The Motion to Dismiss is based on Plaintiff’s failure to comply with federal 21 rules and the Court’s orders. Id. at 1–2. Plaintiff, proceeding pro se and in forma pauperis, 22 filed a document titled “Memorandum for the Southern District Court of California” about 23 one and a half months after the deadline to file an opposition to the Motion to Dismiss. 24 ECF No. 59. 25 For the reasons set forth below, the Court DENIES the Motion to Dismiss. Instead, 26 Plaintiff is ORDERED to (1) sign the medical release on or before March 14, 2023 and 27 (2) produce documents responsive to Defendant’s discovery requests on or before 28 April 4, 2023. 2 On May 28, 2021, Plaintiff filed a complaint for medical negligence under the 3 Federal Tort Claims Act alleging that members of the San Diego Veteran Affairs Medical 4 Center failed to investigate and timely diagnosis her breast cancer despite her repeated 5 complaints of chest pain over more than two years, resulting in metastasis, delayed 6 treatment, and additional pain and suffering. ECF No. 1. 7 When Plaintiff refused to participate in a Rule 26(f) conference or in preparing a 8 joint discovery plan with opposing counsel, the Court held a status conference on 9 May 12, 2022 and instructed Plaintiff about discovery requirements, scheduling order 10 deadlines, and her obligations to prosecute the case, including a medical release for her 11 records. See ECF Nos. 24; 37 at 2–3. The Court subsequently issued a scheduling order 12 that set the deadline for fact and expert discovery on October 12, 2022. ECF No. 27 at 2. 13 Between May 12, 2022 and August 12, 2022, Defendant attempted to obtain a 14 medical release from Plaintiff numerous times by mail, phone, email, and text message. 15 ECF No. 45 at 3; ECF No. 30-1, Declaration of Leslie Gardner in support of Defendant’s 16 ex parte application to compel Plaintiff’s release of her medical records and compliance 17 with discovery requirements (“Gardner Decl.”), ¶¶ 7–24. Plaintiff also failed to provide 18 initial disclosures, respond to Defendant’s requests for production and interrogatories, or 19 designate expert witnesses. ECF No. 45 at 3; Gardner Decl. ¶¶ 7–26. 20 On August 12, 2022, Defendant filed an ex parte application to compel Plaintiff to 21 release her medical records and comply with Rules 26(a)(1), 33, and 34 of the Federal 22 Rules of Civil Procedure to provide initial disclosures and respond to interrogatories and 23 requests for production. ECF No. 30. When Plaintiff failed to respond to the motion to 24 compel, the Court issued on September 19, 2022 an order to show cause (“OSC”) why it 25 should not dismiss the case for Plaintiff’s failure to comply with the Court’s order to brief 26 the motion to compel and failure to comply with the discovery deadlines. ECF No. 35. The 27 Court warned that a failure to respond to the OSC in writing by October 3, 2022 could 28 result in dismissal of this case. Id. at 6. Plaintiff did not respond to the OSC. However, also 1 on September 19, 2022, Plaintiff filed a motion to amend the scheduling order governing 2 discovery to allow her time to appeal the Court’s denial of her requests for counsel. 3 ECF No. 36. Her motion was denied by the Court. ECF No. 37. 4 On November 14, 2022, Defendant filed the instant Motion to Dismiss. ECF No. 45. 5 The Court delayed briefing on the Motion to Dismiss until the ruling on the motion to 6 compel was issued. ECF No. 48. On November 22, 2022, the Court granted Defendant’s 7 motion to compel and ordered Plaintiff to produce by December 2, 2022 documents 8 responsive to Defendant’s discovery requests, including a release for the medical records 9 sought. ECF No. 49 at 5. Plaintiff failed to comply with the Court’s order. See ECF 10 No. 51. On December 12, 2022, the Court issued a scheduling order for briefing on 11 Defendant’s Motion to Dismiss requiring Plaintiff to file her opposition by January 6, 2023. 12 ECF No. 53. Plaintiff did not file an opposition, but instead filed a Memorandum on 13 February 22, 2023 that does not address the Motion to Dismiss. ECF No. 59. 15 Rule 41(b) of the Federal Rules of Civil Procedure provides that a defendant may 16 move to dismiss a lawsuit “[i]f the plaintiff fails to prosecute or to comply with these rules 17 or a court order.” Fed. R. Civ. P. 41(b). Such a dismissal operates as an adjudication on the 18 merits. Id. Additionally, courts have an inherent power to “manage their own affairs so as 19 to achieve the orderly and expeditious disposition of cases” and may dismiss a case sua 20 sponte for lack of prosecution or failure to comply with any order of the court. Link v. 21 Wabash R. Co., 370 U.S. 626, 629–31 (1962); see Ferdik v. Bonzelet, 963 F.2d 1258, 1260 22 (9th Cir. 1992), as amended (May 22, 1992). “Dismissal is a harsh penalty and is to be 23 imposed only in extreme circumstances.” Henderson v. Duncan, 779 F.2d 1421, 1423 24 (9th Cir. 1986) (citation omitted). 25 When considering whether to dismiss a case for lack of prosecution, the court must 26 weigh the following factors: (1) the public’s interest in expeditious resolution of litigation, 27 (2) the court’s need to manage its docket, (3) the risk of prejudice to the defendants, 28 1 (4) the public policy favoring disposition of cases on their merits, and (5) the availability 2 of less drastic sanctions. Id. (citation omitted). 4 The first three factors weigh in favor of dismissal. It is apparent to the Court that 5 Plaintiff’s failure to cooperate in discovery, as required by the Federal Rules of Civil 6 Procedure, and her failure to comply with the Court’s orders has unnecessarily delayed this 7 case. Plaintiff filed her complaint more than twenty months ago, but has produced no 8 discovery, and the deadlines for discovery and expert disclosures have come and gone. 9 This substantial delay supports the first two dismissal factors and weighs in favor of 10 granting the Motion to Dismiss. See Ferdik, 963 F.2d at 1261 (finding first two dismissal 11 factors supported the district court’s dismissal for lack of prosecution because the case 12 “dragged on for over a year and a half before it finally was dismissed”). The third factor of 13 prejudice to Defendant also weighs in favor of dismissal because Plaintiff’s refusal to 14 cooperate in discovery has prevented Defendant from obtaining evidence that is relevant 15 to Plaintiff’s medical claims and Defendant’s defenses, which also precluded Defendant 16 from obtaining its own expert reports. See In re Phenylpropanolamine (PPA) Prod. Liab. 17 Litig., 460 F.3d 1217, 1227 (9th Cir. 2006) (citation omitted) (“A defendant suffers 18 prejudice if the plaintiff's actions impair the defendant's ability to go to trial or threaten to 19 interfere with the rightful decision of the case.”). Plaintiff has prejudiced Defendant by 20 refusing to release her medical records, despite an express order from the Court and a 21 determination that they are relevant to her claims. Id. (citation omitted) (“Failing to produce 22 documents as ordered is considered sufficient prejudice.”). 23 The fourth and fifth factors weigh in favor of denying the Motion to Dismiss. Public 24 policy favors disposition on the merits. Moreover, the Court is considering a less drastic 25 sanction to right this case such that it can be decided on the merits. Although Plaintiff has 26 been warned once that a failure to respond to the Court’s order may result in dismissal of 27 the case, the Court has not yet warned Plaintiff that her failure to sign the medical release 28 and produce documents responsive to Defendant’s discovery requests will result in the 1 dismissal of her case for failure to prosecute and comply with the Federal Rules of Civil 2 Procedure and the Court’s orders. See Ferdik, 963 F.2d at 1262 (finding a district court's 3 warning to a party that his failure to obey the court's order will result in dismissal satisfied 4 the requirement to consider less drastic alternatives to dismissal). 6 The Court finds that the strength of factors four and five outweigh the first three 7 factors and accordingly DENIES Defendant’s Motion to Dismiss. Instead, Plaintiff is 8 ORDERED to (1) sign the medical release on or before March 14, 2023 and (2) produce 9 documents responsive to Defendant’s discovery requests1 on or before April 4, 2023. 10 The Court is sympathetic to Plaintiff’s health issues and cognizant of her pro se status, but 11 these do not excuse her violation of the Court’s clear order, which found the material to be 12 relevant despite Plaintiff’s insistence that the scope of the discovery requested was too 13 broad or unnecessary. Plaintiff may continue to disagree with the Court’s finding, but this 14 does not give her permission to disregard the order. If Plaintiff fails to timely comply 15 with either the order to sign the medical release or to produce documents responsive 16 to Defendant’s discovery requests, the Court will dismiss this case with prejudice for 17 lack of prosecution and failure to comply with the Court’s orders pursuant to Federal 18 Rule of Civil Procedure 41(b) and the Court’s inherent power to control its docket. 19 In light of the above order, the Court finds Defendant’s alternative Motion for 20 Summary Judgment to be premature and denies it without prejudice. 21 / / / 22 / / / 23 / / / 24 25 1 These include initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1), 26 interrogatories, and requests for production and can be found as exhibits to Defendant’s 27 August 18, 2022 Ex Parte Application to Compel Plaintiff’s Release of her Medical Records and Plaintiff’s Compliance with Federal Rules of Civil Procedure 26(a)(1), 33, 28 1 Finally, the Court DIRECTS the Clerk’s Office to attach to this Order a copy of 2 || Docket No. 30 and its exhibits when it mails this Order to Plaintiff. See supra note 1. 4 Dated: February 28, 2023 NO 5 Je J 6 Honorable Linda Lopez 5 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28