1 2 3 4 5 6 7 10 11 CHRISTINE ANN RUSSELL, Case No.: 21cv1029-LL-MDD
12 Plaintiff, ORDER DISMISSING CASE FOR 13 v. FAILURE TO PROSECUTE
14 THE UNITED STATES OF AMERICA, 15 Defendant. 16 17 18 Plaintiff Christine Ann Russell, proceeding pro se and in forma pauperis, filed a 19 complaint for medical negligence in 2021. ECF No. 1. For the reasons discussed below, 20 the Court DISMISSES the case WITH PREJUDICE for failure to prosecute and for 21 failure to comply with the Court’s orders. 23 On May 28, 2021, Plaintiff filed a complaint for medical negligence under the 24 Federal Tort Claims Act alleging that members of the San Diego Veteran Affairs Medical 25 Center failed to investigate and timely diagnosis her breast cancer despite her repeated 26 complaints of chest pain over more than two years, resulting in metastasis, delayed 27 treatment, and additional pain and suffering. ECF No. 1. 28 1 When Plaintiff refused to participate in a Federal Rule of Civil Procedure 26(f) 2 conference or in preparing a joint discovery plan with opposing counsel, the Court held a 3 status conference on May 12, 2022 and instructed Plaintiff about discovery requirements, 4 scheduling order deadlines, and her obligations to prosecute the case, including a medical 5 release for her records. See ECF Nos. 24; 37 at 2–3. The Court subsequently issued a 6 scheduling order that set the deadline for fact and expert discovery on October 12, 2022. 7 ECF No. 27 at 2. 8 Between May 12, 2022 and August 12, 2022, Defendant attempted to obtain a 9 medical release from Plaintiff numerous times by mail, phone, email, and text message. 10 ECF No. 45 at 3; ECF No. 30-1, Declaration of Leslie Gardner in support of Defendant’s 11 ex parte application to compel Plaintiff’s release of her medical records and compliance 12 with discovery requirements (“Gardner Decl.”), ¶¶ 7–24. Plaintiff also failed to provide 13 initial disclosures, respond to Defendant’s requests for production and interrogatories, or 14 designate expert witnesses. ECF No. 45 at 3; Gardner Decl. ¶¶ 7–26. 15 On August 12, 2022, Defendant filed an ex parte application to compel Plaintiff to 16 release her medical records and comply with Rules 26(a)(1), 33, and 34 of the Federal 17 Rules of Civil Procedure to provide initial disclosures and respond to interrogatories and 18 requests for production. ECF No. 30. The Court subsequently entered a briefing schedule. 19 ECF No. 32. When Plaintiff failed to respond to the motion to compel, the Court issued on 20 September 19, 2022 an order to show cause (“OSC”) why it should not dismiss the case 21 for Plaintiff’s failure to comply with the Court’s order to brief the motion to compel and 22 failure to comply with the discovery deadlines. ECF No. 35. The Court warned that a failure 23 to respond to the OSC in writing by October 3, 2022 could result in dismissal of this case. 24 Id. at 6. Plaintiff did not respond to the OSC. However, also on September 19, 2022, 25 Plaintiff filed a motion to amend the scheduling order governing discovery to allow her 26 time to appeal the Court’s denial of her requests for counsel. 27 ECF No. 36. Her motion was denied by the Court. ECF No. 37. 28 1 On November 14, 2022, Defendant filed a motion to dismiss for failure to prosecute, 2 or alternatively, for summary judgment (hereinafter “Motion to Dismiss”). ECF No. 45. 3 The Motion to Dismiss was based on Plaintiff’s failure to comply with federal rules and 4 the Court’s orders. Id. at 1–2. The Court delayed briefing on the Motion to Dismiss until 5 the ruling on the motion to compel was issued. ECF No. 48. On November 22, 2022, the 6 Court granted Defendant’s motion to compel and ordered Plaintiff to produce by December 7 2, 2022 documents responsive to Defendant’s discovery requests, including a release for 8 the medical records sought.1 ECF No. 49 at 5. Plaintiff failed to comply with the Court’s 9 order. See ECF No. 51. 10 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 did not address the Motion to Dismiss.2 ECF No. 59. 14 On February 28, 2023, the Court issued an order denying Defendant’s Motion to 15 Dismiss and instead gave Plaintiff one last opportunity to comply with previous Court 16 orders by (1) signing the medical release on or before March 14, 2023 and (2) producing 17 documents responsive to Defendant’s discovery requests3 on or before April 4, 2023. 18 ECF No. 60. The Court warned Plaintiff that a failure to timely comply with either 19 requirement would result in dismissal of this case with prejudice for lack of prosecution 20 21 22 1 The Court also discharged the September 19, 2022 OSC as moot based on the pending 23 Motion to Dismiss. ECF No. 49 at 5. 2 Plaintiff’s Memorandum contains, inter alia, her continued frustration with the Veterans 24 Health Administration, frustrations about the Court’s denial of her request for a court- 25 appointed attorney, and her reiteration that the medical release sought from her is too broad. ECF No. 59. 26 3 These included initial disclosures, interrogatories, and requests for production, which 27 were attached as exhibits to Defendant’s August 18, 2022 Ex Parte Application to Compel Plaintiff’s Release of her Medical Records and Plaintiff’s Compliance with Federal Rules 28 1 and failure to comply with the Court’s orders pursuant to Federal Rule of Civil Procedure 2 41(b) and the Court’s inherent power to control its docket. Id. at 5. On April 7, 2023, 3 Defendant filed a status report indicating that Plaintiff failed to comply with either of the 4 two requirements in the Court’s February 28, 2023 order. ECF No. 61. 6 Rule 41(b) of the Federal Rules of Civil Procedure provides that a defendant may 7 move to dismiss a lawsuit “[i]f the plaintiff fails to prosecute or to comply with these rules 8 or a court order.” Fed. R. Civ. P. 41(b). Such a dismissal operates as an adjudication on the 9 merits. Id. Additionally, courts have an inherent power to “manage their own affairs so as 10 to achieve the orderly and expeditious disposition of cases” and may dismiss a case sua 11 sponte for lack of prosecution or failure to comply with any order of the court. Link v. 12 Wabash R. Co., 370 U.S. 626, 629–31 (1962); see Ferdik v. Bonzelet, 963 F.2d 1258, 1260 13 (9th Cir. 1992), as amended (May 22, 1992). “Dismissal is a harsh penalty and is to be 14 imposed only in extreme circumstances.” Henderson v. Duncan, 779 F.2d 1421, 1423 15 (9th Cir. 1986) (citation omitted). 16 When considering whether to dismiss a case for lack of prosecution, the court must 17 weigh the following factors: (1) the public’s interest in expeditious resolution of litigation, 18 (2) the court’s need to manage its docket, (3) the risk of prejudice to the defendants, 19 (4) the public policy favoring disposition of cases on their merits, and (5) the availability 20 of less drastic sanctions. Id. (citation omitted). 22 Previously, the Court found that in weighing the factors, dismissal for lack of 23 prosecution was not warranted, but the circumstances have changed.
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1 2 3 4 5 6 7 10 11 CHRISTINE ANN RUSSELL, Case No.: 21cv1029-LL-MDD
12 Plaintiff, ORDER DISMISSING CASE FOR 13 v. FAILURE TO PROSECUTE
14 THE UNITED STATES OF AMERICA, 15 Defendant. 16 17 18 Plaintiff Christine Ann Russell, proceeding pro se and in forma pauperis, filed a 19 complaint for medical negligence in 2021. ECF No. 1. For the reasons discussed below, 20 the Court DISMISSES the case WITH PREJUDICE for failure to prosecute and for 21 failure to comply with the Court’s orders. 23 On May 28, 2021, Plaintiff filed a complaint for medical negligence under the 24 Federal Tort Claims Act alleging that members of the San Diego Veteran Affairs Medical 25 Center failed to investigate and timely diagnosis her breast cancer despite her repeated 26 complaints of chest pain over more than two years, resulting in metastasis, delayed 27 treatment, and additional pain and suffering. ECF No. 1. 28 1 When Plaintiff refused to participate in a Federal Rule of Civil Procedure 26(f) 2 conference or in preparing a joint discovery plan with opposing counsel, the Court held a 3 status conference on May 12, 2022 and instructed Plaintiff about discovery requirements, 4 scheduling order deadlines, and her obligations to prosecute the case, including a medical 5 release for her records. See ECF Nos. 24; 37 at 2–3. The Court subsequently issued a 6 scheduling order that set the deadline for fact and expert discovery on October 12, 2022. 7 ECF No. 27 at 2. 8 Between May 12, 2022 and August 12, 2022, Defendant attempted to obtain a 9 medical release from Plaintiff numerous times by mail, phone, email, and text message. 10 ECF No. 45 at 3; ECF No. 30-1, Declaration of Leslie Gardner in support of Defendant’s 11 ex parte application to compel Plaintiff’s release of her medical records and compliance 12 with discovery requirements (“Gardner Decl.”), ¶¶ 7–24. Plaintiff also failed to provide 13 initial disclosures, respond to Defendant’s requests for production and interrogatories, or 14 designate expert witnesses. ECF No. 45 at 3; Gardner Decl. ¶¶ 7–26. 15 On August 12, 2022, Defendant filed an ex parte application to compel Plaintiff to 16 release her medical records and comply with Rules 26(a)(1), 33, and 34 of the Federal 17 Rules of Civil Procedure to provide initial disclosures and respond to interrogatories and 18 requests for production. ECF No. 30. The Court subsequently entered a briefing schedule. 19 ECF No. 32. When Plaintiff failed to respond to the motion to compel, the Court issued on 20 September 19, 2022 an order to show cause (“OSC”) why it should not dismiss the case 21 for Plaintiff’s failure to comply with the Court’s order to brief the motion to compel and 22 failure to comply with the discovery deadlines. ECF No. 35. The Court warned that a failure 23 to respond to the OSC in writing by October 3, 2022 could result in dismissal of this case. 24 Id. at 6. Plaintiff did not respond to the OSC. However, also on September 19, 2022, 25 Plaintiff filed a motion to amend the scheduling order governing discovery to allow her 26 time to appeal the Court’s denial of her requests for counsel. 27 ECF No. 36. Her motion was denied by the Court. ECF No. 37. 28 1 On November 14, 2022, Defendant filed a motion to dismiss for failure to prosecute, 2 or alternatively, for summary judgment (hereinafter “Motion to Dismiss”). ECF No. 45. 3 The Motion to Dismiss was based on Plaintiff’s failure to comply with federal rules and 4 the Court’s orders. Id. at 1–2. The Court delayed briefing on the Motion to Dismiss until 5 the ruling on the motion to compel was issued. ECF No. 48. On November 22, 2022, the 6 Court granted Defendant’s motion to compel and ordered Plaintiff to produce by December 7 2, 2022 documents responsive to Defendant’s discovery requests, including a release for 8 the medical records sought.1 ECF No. 49 at 5. Plaintiff failed to comply with the Court’s 9 order. See ECF No. 51. 10 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 did not address the Motion to Dismiss.2 ECF No. 59. 14 On February 28, 2023, the Court issued an order denying Defendant’s Motion to 15 Dismiss and instead gave Plaintiff one last opportunity to comply with previous Court 16 orders by (1) signing the medical release on or before March 14, 2023 and (2) producing 17 documents responsive to Defendant’s discovery requests3 on or before April 4, 2023. 18 ECF No. 60. The Court warned Plaintiff that a failure to timely comply with either 19 requirement would result in dismissal of this case with prejudice for lack of prosecution 20 21 22 1 The Court also discharged the September 19, 2022 OSC as moot based on the pending 23 Motion to Dismiss. ECF No. 49 at 5. 2 Plaintiff’s Memorandum contains, inter alia, her continued frustration with the Veterans 24 Health Administration, frustrations about the Court’s denial of her request for a court- 25 appointed attorney, and her reiteration that the medical release sought from her is too broad. ECF No. 59. 26 3 These included initial disclosures, interrogatories, and requests for production, which 27 were attached as exhibits to Defendant’s August 18, 2022 Ex Parte Application to Compel Plaintiff’s Release of her Medical Records and Plaintiff’s Compliance with Federal Rules 28 1 and failure to comply with the Court’s orders pursuant to Federal Rule of Civil Procedure 2 41(b) and the Court’s inherent power to control its docket. Id. at 5. On April 7, 2023, 3 Defendant filed a status report indicating that Plaintiff failed to comply with either of the 4 two requirements in the Court’s February 28, 2023 order. ECF No. 61. 6 Rule 41(b) of the Federal Rules of Civil Procedure provides that a defendant may 7 move to dismiss a lawsuit “[i]f the plaintiff fails to prosecute or to comply with these rules 8 or a court order.” Fed. R. Civ. P. 41(b). Such a dismissal operates as an adjudication on the 9 merits. Id. Additionally, courts have an inherent power to “manage their own affairs so as 10 to achieve the orderly and expeditious disposition of cases” and may dismiss a case sua 11 sponte for lack of prosecution or failure to comply with any order of the court. Link v. 12 Wabash R. Co., 370 U.S. 626, 629–31 (1962); see Ferdik v. Bonzelet, 963 F.2d 1258, 1260 13 (9th Cir. 1992), as amended (May 22, 1992). “Dismissal is a harsh penalty and is to be 14 imposed only in extreme circumstances.” Henderson v. Duncan, 779 F.2d 1421, 1423 15 (9th Cir. 1986) (citation omitted). 16 When considering whether to dismiss a case for lack of prosecution, the court must 17 weigh the following factors: (1) the public’s interest in expeditious resolution of litigation, 18 (2) the court’s need to manage its docket, (3) the risk of prejudice to the defendants, 19 (4) the public policy favoring disposition of cases on their merits, and (5) the availability 20 of less drastic sanctions. Id. (citation omitted). 22 Previously, the Court found that in weighing the factors, dismissal for lack of 23 prosecution was not warranted, but the circumstances have changed. In the Court’s 24 February 28, 2023 order, it found the first three factors weighed in favor of dismissal due 25 to Plaintiff’s failure to cooperate in discovery and comply with the Court’s orders, which 26 unnecessarily delayed the case and prejudiced Defendant. ECF No. 60 at 4. Despite this 27 finding, the Court found factors four and five outweighed the first three, primarily because 28 the Court found a less drastic sanction available in the form of an order to comply with 1 previous Court orders within a set amount of time or risk dismissal with prejudice. Id. at 2 4–6. The Court noted that Plaintiff’s compliance with the order would allow the case to 3 proceed on the merits. Id. However, Plaintiff failed to comply, and consideration of this 4 action changes the weighing of the factors. 5 The Court finds the factors now weigh heavily in favor of dismissal for lack of 6 prosecution. Plaintiff’s failure to comply with the Court’s February 28, 2023 order signals 7 a disinterest in prosecuting this case, and the Court has no less drastic alternatives left. See 8 Yourish v. California Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (finding that granting 9 additional time to comply with a court order after a party has disobeyed the order to be a 10 less drastic alternative to dismissal), superseded by statute on other grounds as recognized 11 in Ronconi v. Larkin, 253 F.3d 423, 429 & n.6 (9th Cir. 2001). Monetary sanctions would 12 be ineffective because Plaintiff is proceeding in forma pauperis, and evidentiary sanctions 13 would also be ineffective when Plaintiff has ceased litigating and has allowed discovery 14 deadlines to pass without participation. The first three factors remain in favor of dismissal 15 for the same reasons the Court noted in its February 28, 2023 order: the continued delay of 16 the case caused by Plaintiff’s lack of cooperation in discovery and lack of compliance with 17 orders has prejudiced Defendant and prevented an expeditious resolution of litigation to 18 both the public’s and the Court’s detriment. See ECF No. 60 at 4; In re 19 Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1227 (9th Cir. 2006) 20 (citation omitted) (“A defendant suffers prejudice if the plaintiff's actions impair the 21 defendant's ability to go to trial or threaten to interfere with the rightful decision of the 22 case.”); Ferdik, 963 F.2d at 1261 (finding first two dismissal factors supported the district 23 court’s dismissal for lack of prosecution because the case “dragged on for over a year and 24 a half before it finally was dismissed”). Although public policy favors disposition on the 25 merits, this lone factor is outweighed by the weight of the other four factors favoring 26 dismissal. See Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citation 27 omitted) (“We may affirm a dismissal where at least four factors support dismissal . . . .”). 28 1 |}IV. CONCLUSION 2 Because Plaintiff failed to comply with the Court’s February 28, 2023 order and 3 || previous orders, the Court finds it appropriate to DISMISS the case WITH PRJEJUDICE 4 lack of prosecution and failure to comply with the Court’s orders pursuant to Federal 5 ||Rule of Civil Procedure 41(b) and the Court’s inherent power to control its docket. See 6 || Link., 370 U.S. at 629-31; Ferdik, 963 F.2d at 1260. The Court DIRECTS the Clerk of 7 Court to enter judgment and close this case. 9 ||Dated: April 12, 2023 NO 10 DE | 11 Honorable Linda Lopez United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28