Lasmarias v. University Medical Center of Southern Nevada

[3] 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 KAREN LASMARIAS, Case No. 2:18-CV-1851 JCM (NJK) 8 Plaintiff(s), ORDER 9 v. 10 UNIVERSITY MEDICAL CENTER OF SOUTHERN NEVADA dba UNIVERSITY 11 MEDICAL CENTER, et al., 12 Defendant(s). [13] 14 Presently before the court is the matter of Lasmarias v. University Medical Center of 15 Southern Nevada et al., case number 2:18-cv-01851-JCM-NJK. 16 I. Background 17 On July 19, 2021, the court held a hearing to determine whether to grant plaintiff Karen 18 Lasmarias’s counsel’s motion to withdraw as counsel for Lasmarias in this matter. (ECF Nos. 19 48, 50). Thereafter, the court granted the motion and instructed Lasmarias that she had until 20 August 20, 2021, to either retain new counsel or to file a notice of intent to proceed pro se. (ECF 21 No. 50). Lasmarias failed to do either. 22 On August 24, 2021, the court ordered Lasmarias to file either a notice of appearance of 23 counsel or a notice that of intent to proceed pro se by September 24, 2021. (ECF No. 53). 24 Lasmarias again failed to do either. So, on September 29, 2021, the court ordered Lasmarias to 25 show cause, no later than October 29, 2021, as to why the court should not issue sanctions 26 against her for violating the court’s orders. (ECF No. 54). To date, Lasmarias has failed to show 27 cause. [28] 1 On October 27, 2021, and October 28, 2021, defendants University Medical Center and 2 Hellene Lopez filed separate motions for summary judgment against Lasmarias. (ECF Nos. 55, 3 57). Lasmarias failed to respond to either motion. 4 The court now determines how to proceed in this matter. 5 II. Legal Standard 6 Pursuant to District of Nevada Local Rule 7-2(d), “the failure of an opposing party to file 7 points and authorities in response to any motion shall constitute a consent to the granting of the 8 motion.” LR 7-2(d). Thus, by failing to file a timely response, a party consents to the granting 9 of an adverse motion. See United States v. Hvass, 355 U.S. 570 , 574–75 (1958) (holding that 10 local rules have the force of law). 11 A court cannot, however, grant a summary judgment motion merely because it is 12 unopposed, even where its local rules might permit it. Henry v. Gill Indus., Inc., 983 F.2d 943 , 13 949-50 (9th Cir. 1993); see also Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003) (a 14 district court cannot grant a motion for summary judgment based merely on the fact that the 15 opposing party failed to file an opposition). 16 Even without an opposition, the court must apply standards consistent with Federal Rule 17 of Civil Procedure 56, determining if the moving party’s motion demonstrates that there is no 18 genuine issue of material fact and judgment is appropriate as a matter of law. Henry, 983 F.2d at 19 950; see also Clarendon Am. Ins. Co. v. Jai Thai Enters., LLC, 625 F. Supp. 2d 1099 , 1103 20 (W.D. Wash. 2009).1 21 Yet, the court also has the inherent power to sua sponte dismiss a case for want of 22 prosecution or non-compliance with court orders. Link v. Wabash R. Co., 370 U.S. 626 , 630–31 23 (1962); Pagtalunan v. Galaza, 291 F.3d 639 , 640–43 (9th Cir. 2002); Ferdik v. Bonzelet, 963 24 F.2d 1258 , 1260 (9th Cir. 1992). 25 . . . 26 . . . 27 1 “[S]ummary judgment cannot be granted by default, even if there is a complete failure to respond to the motion.” Fed.R.Civ.P. 56, 2010 cmt. to subdivision (e). The court may only 28 grant summary judgment if “the motion and supporting materials . . . show that the movant is entitled to it.” Fed. R. Civ. P. 56(e). 1 III. Discussion 2 Before dismissing an action for failure to comply with a court order, the court considers 3 several factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 4 need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 5 favoring disposition of cases o[n] their merits; and (5) the availability of less drastic sanctions.” 6 Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). 7 “The public’s interest in expeditious resolution of litigation always favors dismissal.” 8 Pagtalunan, 291 F.3d at 642 (citing Yourish v. Cal. Amplifier, 191 F.3d 983 , 990 (9th Cir. 9 1999)). 10 The court’s need to manage its docket favors dismissal. There are two potentially 11 meritorious motions for summary judgment against Lasmarias that she failed to oppose. (ECF 12 Nos. 55, 57). The process to grant those summary judgment motions is significantly more 13 arduous than dismissal for failure to comply with the court’s orders. Lasmarias’s failure to 14 participate in this litigation has forced these motions upon the court despite her consistent failure 15 to comply with the court’s orders. See Pagtalunan, 291 F.3d at 642 (“It is incumbent upon the 16 Court to manage its docket without being subject to routine noncompliance of litigants . . . .”). 17 The risk of prejudice to the defendants favors dismissal. To prove prejudice, a defendant 18 must establish that the plaintiff’s actions impaired the defendant’s ability to proceed to trial or 19 threatened to interfere with the rightful decision of the case. Id. (citing Malone v. United States 20 Postal Serv., 833 F.2d 128, 131 (9th Cir.1987)). While limited delays do not necessarily 21 constitute prejudice, “unreasonable” delays may. Yourish, 191 F.3d at 990 (citing Ash v. 22 Cvetkov, 739 F.2d 493, 496 (9th Cir.1984)). 23 Here, this case has been on the court’s docket, and avoided trial, for over three years. 24 Further, four months have passed since the court first ordered Lasmarias to retain counsel or 25 appear pro se. Not only has Lasmarias failed to do so, but she has been completely silent in this 26 matter since July 19, 2021. The last stipulation filed indicated that Lasmarias still had five 27 depositions to set and take. (ECF No. 51). The unreasonable delay in retaining counsel, and 28 thus engaging in discovery, has inherently increased the risk that witnesses’ memories have 1} faded, and that evidence has become stale. Thus, defendants are at risk of prejudice from 2 | Lasmarias’s unreasonable delays. 3 While less drastic alternative sanctions may exist, they would be ineffective to move this 4) matter along. The court cannot order Lasmarias to participate in this matter any more than it 5 | already has. It cannot impose monetary sanctions for the failure of discovery by Lasmarias. It 6 | cannot strike discovery yet to be taken. It cannot grant the defendants’ motions for summary 7 | judgment without unnecessarily wasting time that could be spent deciding on the motions of 8 | parties in other matters who are actively prosecuting their cases. Thus, no less drastic alternative 9 | is reasonably available to remedy Lasmarias’s non-compliance with the court’s orders, and this 10 | factor favors dismissal. 11 “Public policy favors disposition of cases on the merits. Thus, this factor weighs against 12 | dismissal.” Pagtalunan, 291 F.3d at 643 (citing Hernandez v. City of El Monte, 138 F.3d 393 , 13 | 399 (9th Cir.1998)). 14 Four factors favor dismissal of this matter, and one weighs against dismissal. Therefore, 15 | the court holds that this matter be dismissed for failure to comply with the court’s orders. See id. 16} □□ 643. 17| IV. Conclusion 18 Accordingly, 19 This matter is DISMISSED, without prejudice. The clerk is instructed to close the case. 20 DATED December 16, 2021. 21 hte Atala 9 UNITED STATES DISTRICT JUDGE [28] es C. Mahan District Judge _4-