United States District Court, D. Arizona
G. Campbell United States District Judge
Gabriel Lopez brought this case under the Fair Labor
Standards Act. Doc. 1. On June 15, 2018, the parties filed a
notice of settlement stating that “this matter has been
settled.” Doc. 15. In response to the notice, the Court
entered an order stating that the matter would be dismissed
with prejudice within 30 days unless a stipulation to dismiss
had been filed. Doc. 18. On the same day, Plaintiff's
counsel filed a motion to withdraw from representing
Plaintiff. The motion stated that although Plaintiff verbally
agreed to settle with Defendants, Plaintiff subsequently
refused to sign settlement papers and told his attorney that
he no longer wanted her to represent him. Doc. 16. As a
result, counsel moved to withdraw. Id.
18, 2018, counsel for Plaintiff and Defendants requested a
conference with the Court and asked that the deadline for
dismissal be extended to August 17, 2018. Doc. 19. After
receiving this stipulation, the Court's Judicial
Assistant spoke with counsel by telephone. Plaintiff's
counsel stated that she had had no contact with Plaintiff
since he had refused to sign the settlement and had
terminated her. Because Plaintiff was not cooperating, the
parties had been unable to conclude the settlement and file
the documents required by the Court's deadline.
response to the parties' stipulation and this telephone
call, the Court issued an order on July 19, 2018. Doc. 20.
The order set a hearing for July 27, 2018, at 11:00 a.m., and
stated, in bold type, that “Plaintiff, Gabriel Lopez,
shall appear in person at the hearing.” Id.
The order further provided that “counsel for Plaintiff
shall provide notice of this hearing to Plaintiff, Gabriel
Lopez, on or before July 24, 2018, and shall file notice to
the Court that Plaintiff Gabriel Lopez has been made aware of
his requirement to appear at the hearing.” Id.
On July 23, 2018, Plaintiff's counsel filed a notice
confirming that she had called, texted, and emailed Plaintiff
all of the necessary information regarding the hearing set
for July 27, 2018. Doc. 21. Plaintiff's counsel also
emailed Plaintiff a copy of the Court's order setting the
hearing. Id. The Court's Judicial Assistant also
spoke to Plaintiff Gabriel Lopez by phone and advised him of
failed to appear at the hearing on July 27, 2018. Counsel for
both parties called into the hearing. In response to
Plaintiff's failure to appear, counsel for Defendants
suggested that the case be dismissed with prejudice. Counsel
for Plaintiff suggested that the case be dismissed without
has the general duty to prosecute this case. Fid.
Philadelphia Trust Co. v. Pioche Mines Consol., Inc.,
587 F.2d 27, 29 (9th Cir. 1978). Under Rule 41(b) of the
Federal Rules of Civil Procedure, a district court may
dismiss a plaintiff's action because of his failure to
prosecute or to comply with court orders. See Fed.
R. Civ. P. 41(b); Link v. Wabash Railroad Co., 370
U.S. 626, 629-30 (1962) (a district court has the inherent
power to dismiss a case sua sponte for failure to prosecute);
Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (1992)
(holding that a district court may dismiss an action for
failure to comply with any order of the court); see also
Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (a
district court may dismiss an action for failure to comply
with a local rule).
determining whether Plaintiff's failure to prosecute
warrants dismissal, the Court must weigh five 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 the defendants; (4)
the public policy favoring disposition of cases on their
merits; and (5) the availability of less drastic
sanctions.” Carey, 856 F.2d at 1440 (quoting
Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.
1986)). “The first two of these factors favor the
imposition of sanctions in most cases, while the fourth
factor cuts against a default or dismissal sanction. Thus the
key factors are prejudice and availability of lesser
sanctions.” Wanderer v. Johnson, 910 F.2d 652,
656 (9th Cir. 1990).
the first, second, and third factors favor dismissal.
Plaintiffs refusal to communicate and failure to abide by
court orders prevents this case from proceeding. The fourth
factor, as always, weighs against dismissal. The fifth factor
requires the Court to consider whether a less drastic
alternative is available. The Court sees no alternative to
dismissal with prejudice that would be fair to Defendants.
Plaintiff has filed this case, forced Defendants to incur
defense costs, engaged Defendants in settlement negotiations,
refused to honor the settlement agreement, and stopped
communicating or participating. Dismissal without prejudice
would permit Plaintiff - who has had counsel throughout this
proceeding and thus has not been at any strategic
disadvantage - to re-file this case and force Defendants to
incur the same costs again. Because that result would be
unfair to Defendants, who have participated in this case in
good faith, the Court will dismiss this action with
action is dismissed with prejudice.
Plaintiffs counsel's motion to withdraw ...