Millennium Franchise Group, LLC v. Bank of America, N.A.

— 1 — — 2 — — 3 — — 4 — 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA — 7 — 8 MILLENNIUM FRANCHISE GROUP, Case No. 21-cv-08684-CRB LLC, — 9 — Plaintiff, ORDER GRANTING — 10 — DEFENDANTS’ MOTION TO v. DISMISS — 11 — ARIC K PERMINTER, et al., — 12 — Defendants. — 13 — 14 Defendants move to dismiss this action for failure to prosecute following the 15 withdrawal of Plaintiff’s counsel and Plaintiff’s failure to obtain new counsel within the 16 deadline imposed by the Court. The Court granted Plaintiff’s counsel’s motion to 17 withdraw on March 17, 2025, and gave Plaintiff 30 days to file a substitution of counsel. 18 Withdrawal Order (dkt. 93) at 2. The Court expressly informed Plaintiff that failure to file 19 a substitution of counsel “may result in dismissal of this action for failure to prosecute.” 20 Id. On Plaintiff’s request, the Court then granted Plaintiff a twenty-day extension to file a 21 substitution of counsel. Extension Order (dkt. 95) at 1. The Court again warned Plaintiff: 22 “Failure to file a substitution of counsel by May 7, 2025 may result in dismissal of this 23 action for failure to prosecute under Federal Rule of Civil Procedure 41(b).” Id. 24 When Plaintiff failed to file a substitution of counsel on May 7, Defendants moved 25 to dismiss. MTD (dkt. 96). Plaintiff, however, notified the Court that it had identified new 26 counsel and expected to have representation finalized by May 9, 2025. Beamon Letter 27 (dkt. 97). But May 9 came and went without the filing of any substitution of counsel. 1 2025—the date that Plaintiff’s opposition to Defendants’ motion would be due—or else 2 “the Court will dismiss this matter for failure to prosecute under Federal Rule of Civil 3 Procedure 41(b).” Order re: Failure to Prosecute (dkt. 100) at 1 (emphasis in original). 4 May 22 has now passed, and Plaintiff has still not filed a substitution of counsel. 5 Plaintiff has repeatedly failed to comply with the Court’s orders to obtain new counsel and 6 move this litigation along. Indeed, as Defendants explain in their supplemental brief in 7 support of their motion to dismiss, Plaintiff delayed this case long before Plaintiff’s 8 counsel withdrew by failing to timely respond to interrogatories (in April 2024), failing to 9 meet and confer with Defendants as to discovery disputes (in June 2024), and failing to 10 meet and confer with Defendants as to case management conference statements (in 11 September 2024 and January 2025). Supp. Br. (dkt. 101) at 2–3. This pattern of delay on 12 Plaintiff’s part, which has culminated in Plaintiff’s failure to file substitution of counsel 13 within the (twice-extended) time set by the Court, warrants dismissal. See Link v. Wabash 14 R.R. Co., 370 U.S. 626 , 634–65 (1962) (courts appropriately consider earlier delays in 15 determining whether to dismiss for failure to prosecute); Opta Sys., LLC v. Daewoo Elecs. 16 Am., 483 F. Supp. 2d 400 , 404–06 (D.N.J. 2007) (dismissing action when corporate 17 plaintiff failed to retain substitute counsel despite repeated warnings). 18 Courts within the Ninth Circuit consider five factors in determining whether to 19 dismiss an action under these circumstances with or without prejudice: (1) “the public’s 20 interest in expeditious resolution of litigation,” (2) “the court’s need to manage its docket,” 21 (3) the risk of prejudice to the defendants,” (4) “the public policy favoring disposition of 22 cases on their merits,” and (5) “the availability of less drastic sanctions.” Moss v. City of 23 Los Angeles, 663 F. App’x 529, 530 (9th Cir. 2016) (citation omitted). As a general rule, 24 the first two factors favor dismissal with prejudice, while the fourth favors dismissal 25 without prejudice. Id. Thus, the Court’s inquiry “focus[es] on whether any aspect of the 26 delay prejudiced the defendants.” Mir v. Fosburg, 706 F.2d 916, 918 (9th Cir. 1983). 27 Though “[t]he longer the delay, the more likely prejudice becomes,” delay itself is not 1 1980). Prejudice usually entails something like “loss of evidence [or] loss of memory by a 2 || witness,” id.; costs associated with delay warrant dismissal with prejudice only if they are 3 “excessive.” Grine v. Coombs, 214 F.R.D. 312, 367 (W.D. Pa. 2003). 4 Defendants point out that Plaintiff’s delay—both in discovery and in failing to 5 || substitute counsel—has led Defendants to incur increased costs and legal fees. Supp. Br. 6 || at 2-3. Though undesirable, these increased costs and fees do not constitute the kind of 7 || prejudice to defendants that would justify dismissal with prejudice. Moreover, Defendants 8 || can move to recoup their costs and fees from Plaintiff—a less drastic sanction than 9 || dismissal with prejudice. See Moss, 663 F. App’x at 530 (courts must consider less drastic 10 || sanctions). Defendants do not identify any irreversible prejudice from Plaintiff’s delay. 11 Accordingly, the Court GRANTS Defendants’ motion to dismiss the action without 12 || prejudice. The Clerk of Court is instructed to close this case. 13 IT IS SO ORDERED. 14 Dated: May 23, 2025 CHARLES R. BREYER 2 15 United States District Judge (16 © 17 — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —