Opinion
3:21-cv-234-JR
11-29-2021
NW XPRESS, LLC, an Oregon limited liability company, Plaintiff, v. ARTISAN AND TRUCKERS CASUALTY COMPANY, Defendant.
FINDINGS & RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Plaintiff, N.W. Express, LLC, initiated this action on January 8, 2021 in the Circuit Court of the State of Oregon for the County of Multnomah asserting breach of contract based on defendant Artisan and Truckers Casualty Company's alleged wrongful denial of a fire loss claim to an insured vehicle. Defendant removed the case to this Court on February 11, 2021.
On September 29, 2021, plaintiff's counsel sought to withdraw. On October 8, 2021, the Court ordered plaintiff's attorney to notify the Court, by October 15, 2021, that he advised corporate plaintiff of the counsel requirement for corporate entities. The Court further granted plaintiff until November 8, 2021 to seek new counsel. The Court subsequently granted counsel's request to withdraw on October 9, 2021. On October 11, 2021, plaintiff's former counsel confirmed with the Court that he had notified plaintiff of the counsel requirement.
With no response from plaintiff, on November 9, 2021, the Court ordered plaintiff to show cause by November 19, 2021 why the case should not be dismissed for want of prosecution. Also on November 9, 2021, defendant moved to dismiss the case for failure to comply with a court order and because plaintiff, as a corporate entity, may not legally represent itself pro se.
To date, plaintiff has not responded to the Order to Show Cause or the motion to dismiss. Defendant seeks dismissal with prejudice.
A party that is not a natural person must appear through counsel in all cases. Or. Rev. Stat. § 9.320. As an LLC, plaintiff must be represented by counsel, but has failed to notify the Court of such representation despite two Orders mandating such notification. Defendant notes that in addition to failing to retain counsel and respond to the Court's Order, plaintiff has failed to provide discovery which was requested prior to counsel's withdrawal.
The district court has the inherent power sua sponte, or upon motion, to dismiss a case for lack of prosecution. Fed.R.Civ.P. 41(b); Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir.1984). A dismissal under Rule 41(b) operates as an adjudication on the merits.
Dismissal is a harsh penalty and is to be imposed only in extreme circumstances…. The district court was required to weigh several factors in determining whether to dismiss this case for lack of prosecution: (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.Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).
Dismissal for lack of prosecution requires a showing of unreasonable delay. Nealey v. Transportation Maritima Mexicana, S.A., 662 F.2d 1275, 1280 (9th Cir.1980). Unreasonable delay creates a presumption of injury to the defense. Ash, 739 F.2d at 496.
Although this case has been pending for less than a year, plaintiff has failed to meaningfully prosecute this case and engage in discovery for the nearly 11 months the case has been pending. Moreover, plaintiff has failed, despite Court orders, to notify the Court of its retention of counsel necessary to prosecute the case. Moreover, plaintiff has failed to respond to the motion to dismiss. Such failures demonstrate harm to the public's interest to expeditious resolution of cases and the Court's need to manage its docket. Allowing the case to remain on the docket, stalled as it is, would prejudice defendant by having the case hanging over it with no apparent means to access the discovery it needs to defend itself. Because the Court has previously ordered plaintiff to retain necessary counsel and plaintiff has failed to respond in any fashion, there is no sanction less drastic that will suffice to move this case along. Although a disposition on the merits following appropriate prosecution and defense is generally favored, a dismissal for failure to prosecute does operate as merits decision. Accordingly, the Court should grant defendant's motion and dismiss this case, with prejudice, for failure to prosecute and failure to follow a Court Order pursuant to Rule 41(b).
CONCLUSION
Defendant's motion for involuntary dismissal (ECF 24) should be granted and this action should be dismissed, with prejudice, for failure to prosecute. A judgment should enter accordingly.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.