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Budiyanto v. My Vintage Venue LLC

United States District Court, D. Arizona

October 31, 2017

Yoshi Budiyanto, et al., Plaintiffs,
v.
My Vintage Venue, LLC, et al., Defendants. Couple of Bartenders, LLC, et al., Crossclaimants,
v.
Jeanne and John Doe Colquette, et al., Crossdefendants. Lavender & Old Lace, LLC, Crossclaimant,
v.
Emily and John Doe Hughes, et al., Crossdefendants. Jeanne Colquette dba Events Your Way, Crossclaimant,
v.
My Vintage Venue, LLC, et al., Crossdefendants. Pixy Cakes, LLC, et al., Crossclaimants,
v.
My Vintage Venue, LLC, et al., Crossdefendants. Gail and TimothyArchambeau, Crossclaimants,
v.
Lavender and Old Lace, LLC, Crossdefendant.

          ORDER

          STEVEN P. LOGAN UNITED STATES DISTRICT JUDGE.

         For the reasons that follow, this case will be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.

         I. Background

         Plaintiffs Yoshi Budiyanto and Rebekah Kay Lynn Huges allege that on May 21, 2016, professional photographer Rizalde Sherwood took a “special wedding photograph” of them “standing under the gazebo” at their wedding reception. (Docs. 1 ¶ 25; 1-1.) On August 18, 2016, Plaintiffs, through attorney Sylvia Lynne Thomas, registered a copyright in a “photograph, Wedding Photograph Compilation.” (Doc. 1-1 at 12-13.) On May 8, 2017, Plaintiffs, through counsel, filed a complaint against 33 defendants for copyright infringement, contributory copyright infringement, vicarious copyright infringement, and violations of the Digital Millennium Copyright Act (“DMCA”). (Doc. 1.) The complaint alleges that Defendants infringed Plaintiffs' copyright by, among other things, creating a flyer depicting the “special wedding photograph, ” sharing the flyer, and/or posting the flyer on social media between June and July of 2016.

         Following a prolonged series of orders and filings concerning service and answers, in July 2017, Plaintiffs noticed their intent to amend their complaint. (Docs. 110, 113.) The Court ordered that Plaintiffs would have until August 10, 2017 to file their amended complaint, and all Defendants would have 21 days of the filing of the amended complaint to file answers, counterclaims, and crossclaims. In the event Plaintiffs did not file an amended complaint, Defendants were alternatively given until August 17, 2017 to file answers, counterclaims, and crossclaims. (Doc. 116.)

         No amended complaint was filed, and on August 17, 2017, Defendants American Family Mutual Life Insurance Company, Pixy Cakes, LLC, and Tina and Stephen Cubbon filed a Motion to Dismiss. (Doc. 150.) On request, the Court extended the deadline for Plaintiffs to file a response in opposition to the motion to September 11, 2017. (Docs. 167, 172.) Plaintiffs however did not file a response. Instead, without consent of the parties or leave of court, on September 11, 2017, Plaintiffs filed an amended complaint. (Doc. 186.) Because it was not timely filed in accordance with Rule 15(a), the amended complaint was stricken. (Doc. 188.)

         On October 3, 2017, Defendants filed a “Notice Re: Plaintiffs' Counsel, ” attaching a September 6, 2017 Final Judgment and Order issued by the Presiding Disciplinary Judge for the Arizona Supreme Court suspending Plaintiffs' counsel from the practice of law effective September 15, 2017. (Doc. 194.)[1] The Court called counsel to show cause in writing as to why she should not be removed as counsel in this case (Doc. 197), to which counsel filed a response on October 6, 2017 (Doc. 199).

         On October 5, 2017, Defendants filed a Notice of Non-Opposition asking that the Court grant their motion and dismiss the case due to Plaintiffs' failure to timely respond. (Doc. 198.) On October 10, 2017, Plaintiffs filed a Motion for Leave to file a First Amend Complaint (Doc. 202), and a Response to the Notice of Non-Opposition on October 19, 2017 (Doc. 205). Defendants have filed responses opposing Plaintiffs' request for leave to amend. (Docs. 206-210.)

         II. Legal Standard

         Rule 41(b) of the Federal Rules of Civil Procedure provides that “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” The district court also has the inherent power to dismiss a case for failure to prosecute, for failure to comply with court orders, or for failure to follow the local rules. See Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962) (recognizing that even though the language of Rule 41(b) requires a motion, the district court has sua sponte power to dismiss for failure to prosecute); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (failure to comply with local rules is a proper ground for dismissal); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (1992) (a district court may dismiss an action for failure to comply with an order of the court); Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990). “In determining whether to dismiss a claim for failure to prosecute or failure to comply with a court order, the Court must weigh the following factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).

         III. Discussion

         Having considered the five factors here, the Court concludes that dismissal is warranted. While public policy favors disposition of cases on their merits, this factor is outweighed by Plaintiffs' delayed prosecution of this case and continued noncompliance with the Court's Orders and the governing rules. See Pagtalunan, 291 F.3d at 643; Yourish v. Cal. Amplifier, 191 F.3d 983, 986 (9th Cir. 1999); Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1452 (9th Cir. 1994) (“the failure to prosecute diligently is sufficient by itself to justify a dismissal, even in the absence of a showing of actual prejudice to the defendant from the failure”) (internal quotation omitted). To date, Plaintiffs have yet to file a response to Defendants' motion to dismiss. Rather, Plaintiffs have submitted other numerous filings, none of which present any coherent, non-frivolous explanation for their failure to respond to the motion, for their failure to inform the Court of counsel's suspension, or for permitting counsel to continue representing Plaintiffs in this case in spite of the fact that she is not authorized to practice law. See LRCiv 83.1 and 83.2. The filings instead manifest Plaintiffs' continued and increasing inability to comply with the requirements set forth by the rules and the orders of this Court.

         In counsel's 46-page response (Doc. 199) to the Court's Order concerning her suspension, which was accompanied by a 186-page attachment (Docs. 199-1, 200), “Thomas challenges the Disciplinary Court suspension, tantamount to revocation of her state bar membership, on the grounds that pursuant to an antitrust conspiracy involving deprivation of her rights, privileges, and immunities secured by the Constitution and laws including discrimination based on her national origin, ethnicity, race, sex, gender, age, civil and social economic status.” (Doc. 199 at 12.) She “requests that this Court take no action regarding the Disciplinary Court's suspension and thus permit her to continue in practice, representation and prosecution of the Plaintiffs in this matter before it” (Doc. 199 at 45), because “the ‘undertaking [of] any other inquiry' targeted by the District Court to strengthen or ‘shore up' the Hearing Panel's unsubstantiated reasoning in favor of a suspension, tantamount to disbarment, beyond that set forth in its Decision and Order, would serve to further a continuing violation of antitrust laws, constitutional guarantees and their international human rights analogues constituting an ongoing systemic unlawful policy and/or practice” (Doc. 199 at 7-8).

         In their October 19, 2017 filing, Plaintiffs argue that Plaintiffs were not required to respond to Defendants' motion to dismiss because the proposed amended complaint mooted it. (Doc. 205 at 13-14.) This argument is without merit. Both of Plaintiffs' attempts to file an amended complaint were untimely (see Docs. 116, 142), and leave to file an untimely amended complaint would be futile. Cf. Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (holding that when an amended complaint is timely ...


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