Opinion
3:22-cv-01205-YY
08-16-2023
STARLET STENSON, Plaintiff, v. SAFEWAY, INC., Defendant.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE
FINDINGS
On August 16, 2022, plaintiff filed suit against defendant, alleging a single claim of negligence arising out of a fall she claims she suffered at defendant's grocery store on August 29, 2020. Compl., ECF 1. This case should be dismissed for plaintiff's failure to prosecute.
When the case was filed, plaintiff was represented by counsel, James Loren. On March 21, 2023, the court granted Loren's motion to withdraw as counsel. Order, ECF 16. Loren explained that the basis of his motion was “an absence of communication . . . between counsel and Plaintiff.” Mot. Withdraw, ECF 15. Loren provided the court with plaintiff's last known address, phone number, and email address. Id.
The court thereafter issued an order directing all parties to appear at a scheduling conference. Order, ECF 14. A copy of the order was mailed to plaintiff at the address that her former attorney had provided to the court, and the mail was returned as undeliverable. ECF 20.
Based on the returned mail, the court issued an order on April 5, 2023, directing plaintiff to notify the court of her change of address within 60 days or the case was subject to dismissal under Local Rule 83-12. Order, ECF 21. The courtroom deputy attempted to reach plaintiff at the phone number her former attorney had provided, and was advised the number no longer belonged to plaintiff. The courtroom deputy also emailed plaintiff a copy of the court's order. Plaintiff responded to this email with a different address and phone number, and the court directed the clerk of the court to update the docket with this information. Order, ECF 22.
The court held a scheduling conference with all of the parties on April 21, 2023, and set deadlines for the completion of discovery and the filing of dispositive motions. Order, ECF 26. On August 10, 2023, defendant's attorney, Alison Barber, contacted the court to request assistance in compelling discovery from plaintiff. Barber copied plaintiff on the correspondence to the court. Barber explained that defendant had issued interrogatories, requests for production, and tried to coordinate plaintiff's deposition, and the deadline for plaintiff to respond to the discovery requests had passed. Barber also explained that she had followed up with plaintiff to at least get a commitment as to a date by which plaintiff would respond to the requests, and plaintiff responded only to say that she was looking for an attorney.
In conjunction with the scheduling conference, the court issued an order advising the parties that discovery matters would be handled on an informal basis and no formal motion practice was required. Order, ECF 26.
Thereafter, the courtroom deputy contacted the parties to schedule a discovery hearing for August 15, 2023. Plaintiff did not confirm whether she was available on that date, and instead responded that she was “done with this case”:
I'm actually done with this case because I have no time to look for a lawyer but I do know that you guys were at fault I do know that no matter what you guys say none of this would have even occurred if you guys have would have followed protocol and not only kept a wet sign up but turned off your refrigerator for it to stop leaking into the next aisle especially when you were warned and repeatedly told to do so and you neglected to do so so that's where I stand at this I no longer want to fight you guys on this but I don't truly believe that I'm at fault at all especially when I tried to get up until your employee that it was leaking and that I was told that the refrigerator was broken and he literally brushed me off and told me that's not his job and clearly walked away we wouldn't be here if he didn't do that because if this was never my intentions to try to Sue or anything it was just to inform you guys that you needed a wet sign up[.]
Defendant has its own version of the events and contends:
Plaintiff decided to commit a fraud against Safeway and stage a slip and fall accident. . . Having seen the water on the floor, Plaintiff subsequently took a can of WD-40 from Defendant's shelf and deliberately sprayed the liquid WD-40 onto the existing water on the floor. She then turned her back to the spill and intentionally stepped backwards into it, moving her shoes in a circular motion before slipping and falling in the water/WD-40 spill that Plaintiff knew was on the ground. Plaintiff knowingly and purposefully staged this slip and fall. All of Plaintiff's activities were captured on surveillance video.Answer ¶ 3, ECF 12.
The court has inherent authority to dismiss a case based on a plaintiff's failure to prosecute. Link v. Wabash R. Co., 370 U.S. 626, 629 (1962) (recognizing “[t]he authority of a federal trial court to dismiss a plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted” and “[t]he power is of ancient origin”); see also FED. R. CIV. P. 41(B) (allowing a defendant to move for involuntary dismissal based on failure to prosecute). in determining whether to dismiss a case for failure to prosecute, the court weighs 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 alternatives. Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999).
These factors weigh in favor of dismissal here. This case has been pending for a year, and approximately three years have passed since the alleged incident occurred. Further delay prejudices defendant as the costs of defense increase and memories fade with the passage of time. Plaintiff has expressed that she is “done with this case.” Where plaintiff is no longer interested in pursuing this case, the court need not spend more of its time and resources tracking her down to respond to deadlines and schedule hearings. Moreover, the public policy favoring a disposition on the merits is not advanced where the plaintiff is uninterested in pursuing the case herself. Finally, where plaintiff does not wish to pursue the case, there are no less drastic alternatives to dismissal.
RECOMMENDATIONS
Based on plaintiff's failure to respond to discovery requests and expressed desire to be “done with this case,” this case should be dismissed with prejudice for failure to prosecute.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Wednesday, September 06, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are 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 a judgment.