Opinion
Case No. 19-cv-07218-JSC
02-24-2020
NURBU LAMA, et al., Plaintiffs, v. NEW CENTURY FOUNDATION, et al., Defendants.
ORDER OF REASSIGNMENT; REPORT AND RECOMMENDATION TO DISMISS FOR FAILURE TO PROSECUTE
Re: Dkt. No. 61
Plaintiffs Nurbu Lama, Namygyal Dhondup, and Zambala Inc. initiated this action in the Southern District of New York in March 2019 against 12 defendants, alleging violations of the Sherman Antitrust Act, 15 U.S.C. §§ 1, et seq., the Clayton Antitrust Act, 15 U.S.C. §§ 12, et seq., and the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964, as well as pendent state-law claims for breach of contract and unjust enrichment. (Dkt. No. 1.) By order filed August 14, 2019, ("August 2019 Order") a magistrate judge for the Southern District of New York ordered Plaintiffs to address the following issues: (1) unrepresented plaintiff Namygyal Dhondup had not provided the court with his contact information; (2) unrepresented corporate plaintiff Zambala Inc. could not prosecute the action unless an attorney entered an appearance on its behalf; and (3) an attorney, Kiran Meettook, was making unauthorized submissions on behalf of Plaintiffs even though he had not made an appearance on their behalf. (Dkt. No. 45.) The court directed Plaintiffs to address these issues if they wished to proceed with the action.
Thereafter, the magistrate judge issued a report and recommendation to the district court regarding defendant Angela Chen's motion to dismiss, (Dkt. No. 8), recommending that the motion "be denied without prejudice, and that the [district court] sua sponte exercise its discretion, pursuant to 28 U.S.C. § 1406(a), to transfer th[e] case, in its entirety, to the Northern District of California," (Dkt. No. 52 at 2). The district court adopted the report and recommendation and the case was transferred to this District on October 31, 2019. (Dkt. Nos. 54 & 55.) Plaintiffs have not cured any of the defects noted in the August 2019 Order since the transfer. Nor did Plaintiffs appear before the undersigned at the January 30, 2020 initial case management conference.
On January 28, 2020, Mr. Meettook filed an incomprehensible and unauthorized submission entitled "Matter subject to Federal Jurisdiction Before the Supreme Court of New York 1905/2020/ Affidavit of Counsel Meettook," that is docketed as a "Motion for Default Judgment by the Court as to matter before the Supreme Court." (See Dkt. No. 58.) On January 30, 2020, Mr. Meettook filed a declaration purportedly from plaintiff Nurbu Lama that is similarly incomprehensible. (See Dkt. No. 59.) As noted in the undersigned's February 3, 2020 Order to Show Cause, Mr. Meettook has not made a formal appearance on any Plaintiffs' behalf and cannot do so without first being admitted pro hac vice. See N.D. Cal. Civ. L.R. 11-3; see also In re Bundy, 840 F.3d 1034, 1041-42 (9th Cir. 2016) ("Importantly, '[t]here is no right of federal origin that permits [out-of-state] lawyers to appear in state courts without meeting that State's bar admission requirements.'") (quoting Leis v. Flynt, 439 U.S. 438, 443 (1979) (per curiam)), subsequent mandamus proceeding, 852 F.3d 945 (9th Cir. 2017)). Mr. Meettook's repeated unilateral efforts to be added as a party plaintiff are not sufficient to give him the right to appear in this action, (see Dkt. Nos. 48, 49, 50, 51), as only the named Plaintiffs can amend the complaint and then only in accordance with Federal Rule of Civil Procedure 15. --------
On February 3, 2020, the undersigned issued an order to show cause ("OSC") directing Plaintiffs to file a written submission on or before February 18, 2020 explaining why the action should not be dismissed for their failure to correct the deficiencies noted in the August 2019 Order and for their failure to appear at the January 2020 case management conference. (Dkt. No. 61.) The Court warned Plaintiffs that their failure to comply with the OSC and/or to adequately explain their conduct in this action may result in a Report and Recommendation that the action be dismissed with prejudice for a failure to prosecute, pursuant to Federal Rule of Civil Procedure 41. Plaintiffs did not respond by the February 18 deadline and have not otherwise contacted the Court since it issued the OSC.
The Court is without jurisdiction to dismiss this action because none of the parties have consented to magistrate jurisdiction pursuant to 28 U.S.C. § 636(c). See Williams v. King, 875 F.3d 500, 504 (9th Cir. 2017) (holding that magistrate jurisdiction "cannot vest until the court has received consent from all parties to an action"). Accordingly, this action must be REASSIGNED to a district court judge. Further, the Court RECOMMENDS that the newly assigned district court judge DISMISS the action for failure to prosecute for the reasons stated below. //
DISCUSSION
Pursuant to Federal Rule of Civil Procedure 41(b), a court may dismiss an action for failure to prosecute or failure to comply with a court order. See Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that a court may sua sponte dismiss an action pursuant to Rule 41(b)). "A Rule 41(b) dismissal must be supported by a showing of unreasonable delay." Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (internal quotation marks and citation omitted). In determining whether a Rule 41(b) dismissal is appropriate, courts 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 the defendants; (4) the public policy favoring disposition of cases on their merits and (5) the availability of less drastic sanctions." Id. (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). Dismissal is appropriate "where at least four factors support dismissal . . . or where at least three factors strongly support dismissal." Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (internal quotation marks and citation omitted).
Here, four of the five Henderson factors weigh in favor of dismissal. The first two factors—the public interest in expeditious resolution of litigation and the Court's need to manage its docket—relate to the "efficient administration of judicial business for the benefit of all litigants with cases pending." See Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1279 (9th Cir. 1980). Plaintiffs have delayed adjudication of this action by failing to correct the deficiencies noted in the Southern District of New York's August 2019 Order, appear at the January 30 case management conference, and respond to the undersigned's OSC. Noncompliance with procedural rules and the Court's orders wastes "valuable time that [the Court] could have devoted to other . . . criminal and civil cases on its docket." See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Thus, the first two factors favor dismissal.
As for the third factor, while "the pendency of the lawsuit is not sufficiently prejudicial itself to warrant dismissal," the delay caused by Plaintiffs' failure to address the basic deficiencies noted in the August 2019 Order and reiterated in the Court's OSC weighs in favor of dismissal. See Yourish v. California Amplifier, 191 F.3d 983, 991 (9th Cir. 1999) (citing Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984) (noting that "[n]either delay nor prejudice can be viewed in isolation")). The fourth factor is the availability of less drastic sanctions. The Court's OSC cautioned Plaintiffs that failure to respond may result in dismissal of this action with prejudice. Thus, the Court has fulfilled its "obligation to warn the plaintiff that dismissal is imminent." See Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992); see also Ferdik, 963 F.2d at 1262 ("A district court's warning to a party that failure to obey the court's order will result in dismissal can satisfy the 'consideration of [less drastic sanctions]' requirement."). The last factor, which favors disposition on the merits, by definition, weighs against dismissal. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) ("Public policy favors disposition of cases on the merits. Thus, this factor weighs against dismissal.").
In sum, four of the five relevant factors weigh in favor of dismissing this action in its entirety. See Pagtalunan, 291 F.3d at 643 (affirming dismissal where three factors favored dismissal, while two factors weighed against dismissal).
CONCLUSION
Accordingly, the Clerk of Court shall reassign this action to a district court judge. The Court recommends that the newly assigned district court judge dismiss the action for failure to prosecute because Plaintiffs have not corrected the deficiencies noted in the August 2019 Order, did not appear at the January 30 case management conference, and did not respond to the Court's OSC. Any party may file objections to this report and recommendation with the district court judge within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Failure to file an objection may waive the right to review of the issue in the district court.
IT IS SO ORDERED. Dated: February 24, 2020
/s/_________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge