Gomez-Ortega v. Deja Vu - San Francisco LLC

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division — 11 — 12 ELAINE P. GOMEZ-ORTEGA, Case No. 3:17-cv-6971-LB 13 Plaintiff, 14 v. [PROPOSED] ORDER TO SHOW CAUSE 15 DÉJÀ VU SAN FRANCISCO, LLC, et al., — 16 — Defendants. — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — 1 BACKGROUND 2 This is a labor dispute brought as a putative class action under Federal Rule of Civil 3 | Procedure 23.' The court previously stayed the case.” The court also preliminarily approved a 4 || class-action settlement in two related cases.*> That settlement would resolve the putative class 5 | claims in this case.* The hearing for final approval is scheduled for November 17, 2022.° 6 On June 30, 2022, plaintiffs counsel filed a motion to withdraw on the grounds that there 7 | had been a “complete and utter breakdown” in the attorney-client relationship and no 8 || communications with plaintiffs for “several months.”© The motion was unopposed.’ 9 On August 4, 2022, the court held a hearing on plaintiff's counsel’s motion to withdraw. 10 || Despite service of the motion on plaintiff and a court order for plaintiff to appear by Zoom, she 11 || failed to do □□□ The court granted the motion and ordered plaintiff to appear on September 29, 12 | 2022, by Zoom — either pro se or through new counsel — or risk sanctions, including (1) 13 || terminating sanctions in the form of dismissal of her case and (2) monetary sanctions.’ The court 14 | further ordered plaintiff's former counsel to send all filings in the case, including a copy of the 15 | order granting the motion to withdraw, and to serve plaintiff with notice of the September 29, 16 || 2022, conference and instructions for how to appear by Zoom.!° 17 Despite service of the court’s order granting the motion to withdraw and notice of the 18 | September 29, 2022, conference (along with instructions for how to appear via Zoom), plaintiff 19 || again failed to appear.'! The court scheduled a further status conference on October 13, 2022, 20 | and directed withdrawing counsel to service notice of the conference on plaintiff, which 21 || withdrawing counsel did.'” 22 | ' Second Amended Complaint — ECF No. 28. Citations refer to material in the Electronic Case File (ECF); pinpoint 23 citations are to the ECF-generated page numbers at the top of documents. 2 Order — ECF No. 36. 24 3 Order — ECF No. 109. 4 Joint Case Mgmt. Statement — ECF No. 101 at 4. 25 5 Order — ECF No. 109. 6 Mot. — ECF No. 107 at 2, 4; ECF No. 107-1 Dilts’ Decl. at 2. 7 Statement of Non-Opposition — ECF No.113. § Am. Proof of Serv. —-ECF No. 110; Order — ECF No. 112; Min. Entry - ECF No. 116; Order — ECF No. 114 at 2-3. ° Order — ECF No. 114 at 3. 27 || © Order —ECF No. 114 at 3; Clerk’s Notice - ECF No. 117. "l Proof of Serv. — ECF No. 118; Min. Entry — ECF 119. 28 || © Min. Entry — ECF No. 119; Proof of Serv. — ECF No. 120. 2 CASE NO: 3:17-cv-6971-LB ] The court held a further status conference on October 13, 2022.'° Neither plaintiff nor 2 | counsel on plaintiffs behalf appeared.'* The court now orders plaintiff to appear on November 3 || 17, 2022, to show cause as to why this action should not be dismissed for failure to prosecute and 4 | comply with the court’s orders. 5 ANALYSIS 6 Federal Rule of Civil Procedure 41(b) provides that the failure of the plaintiff to prosecute 7 || her claims is grounds for involuntary dismissal of the action. “The courts have read this rule to 8 || require prosecution with ‘reasonable diligence’ if plaintiff is to avoid dismissal.” Anderson v. Air 9 | W., Inc., 542 F.2d 522, 524 (9th Cir. 1976) (citing Ballew v. Southern Pacific Co., 428 F.2d 787 10 | (9th Cir. 1970)). “This court has consistently held that the failure to prosecute diligently is 11 | sufficient by itself to justify a dismissal, even in the absence of a showing of actual prejudice to 12 | the defendant from the failure.” /d. (internal citation omitted). “The law presumes injury from 13 || unreasonable delay.” (citing States Steamship Co. v. Philippine Air Lines, 426 F.2d 803 , 804 14 | (9th Cir. 1970)). “However, this presumption of prejudice is a rebuttable one and if there is a 15 } showing that no actual prejudice occurred, that factor should be considered when determining 16 || whether the trial court exercised sound discretion.” Jd. (citing Reizakis v. Loy, 490 F.2d 1132 (4th 17 | Cir. 1974)). 18 Rule 41(b) also authorizes courts to dismiss an action for plaintiff's failure to comply with 19 || court orders. Fed. R. Civ. P. 41(b); Yourish v. California Amplifier, 191 F.3d 983, 986-987 (9% 20 | Cir. 1999) (holding that Rule 41(b) authorizes dismissal “for failure of plaintiff... to comply with 21 | any order of the court....”). 22 The Ninth Circuit has “constructed a five-part test, with three subparts to the fifth part, to 23 || determine whether a case-dispositive sanction... is just: ‘(1) the public’s interest in expeditious 24 | resolution of litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the 25 || party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) 26 || the availability of less drastic sanctions.’” Conn. Gen. Life Ins. Co. v. New Images of Beverly 27 a © Min. Entry — ECF No. 121. 28 | 1 Min. Entry — ECF No. 121. 3 CASE NO: 3:17-cv-6971-LB 1 | Aills, 482 F.3d 1091 , 1096 (9th Cir. 2007) (quoting Jorgensen v. Cassiday, 320 F.3d 906 , 912 2 | (9th Cir. 2003) (setting forth five-factor test of Malone v. U.S. Postal Serv., 833 F.2d 128 , 130 3 | (Oth Cir. 1987)); Yourish, supra, 191 F.3d at 987 (9th Cir. 1999) (applying the five-factor test to 4 | involuntary dismissals under Rule 41(b)). “The sub-parts of the fifth factor are whether the court 5 || has considered lesser sanctions, whether it tried them, and whether it warned the recalcitrant party 6 || about the possibility of case-dispositive sanctions.” (citing Valley Eng’rs v. Elec. Eng’g Co., 7 | 158 F.3d 1051, 1057 (9th Cir. 1998)). 8 “A terminating sanction, whether default judgment against a defendant or dismissal of a 9 || plaintiff's action, is very severe.... Only ‘willfulness, bad faith, and fault’ justify terminating 10 | sanctions.” Connecticut General, 482 F.3d at 1096 (citing Jorgensen, 320 F.3d at 912 ). 11 Before ordering a terminating sanction, a court must warn the plaintiff and try other 12 || sanctions first. For example, a district court’s failure to warn a party that dismissal is being 13 | considered as a sanction weighs heavily against the sanction. U.S. ex rel. Wiltec Guam, Inc. v. 14 | Kahaluu Constr. Co., 857 F.2d 600, 605 (9th Cir. 1988). Although “[a]n explicit warning is not 15 || always required, at least in a case involving ‘egregious circumstances,”” “[i]n other 16 || circumstances, the failure to warn may place the district court’s order in serious jeopardy.” □□□ 17 | (citing Malone, 833 F.2d at 132-33 ). Indeed, “‘[flailure to warn has frequently been a 18 || contributing factor in [Ninth Circuit] decisions to reverse orders of dismissal.’” Jd. (quoting 19 | Malone, 833 F.2d at 133 ). 20 ORDER TO SHOW CAUSE 21 The court has twice ordered plaintiff to appear — either pro se or through new counsel — 22 | for status conferences on September 29 and October 13, 2022. Plaintiff was served with the 23 || court’s orders requiring her to appear and notices of the conferences. Both times, plaintiff was 24 || warned that failure to appear could result in monetary and terminating sanctions. Plaintiff 25 || violated the court’s orders and has indicated no intention of further prosecuting this action since 26 | her attorneys withdrew due to a breakdown in communications and the attorney-client 27 || relationship. Moreover, at the October 13, 2022, status conference, defendants’ counsel advised 28 | the court that neither plaintiff, nor new counsel on plaintiffs behalf, have contacted defendant’s fp CASE NO: 3:1 Tew 6971 1 | counsel about this action. 2 Based on the foregoing, the court orders plaintiff to appear on November 17, 2022, at 9:30 3 | a.m. by Zoom — either pro se or through new counsel — and show cause why this action should not 4 | be dismissed for failure to prosecute and comply with the court’s orders. If the plaintiff does not 5 || appear, the court warns that she faces sanctions, including monetary sanctions, and, ultimately, 6 || dismissal of her cause for failure to prosecute and comply with the court’s orders, and entry of 7 || judgment in favor of the defendant. — 8 — 9 IT IS SO ORDERED. — 10 — 1 Dated: __ October 2022 LAE — 12 — LAUREL BEELER United States Magistrate Judge — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — fp CASE NO: 3:1 Tew 6971